Where Do You Begin?

You have come to the unhappy conclusion that your marriage is over and you have decided to officially separate from your spouse.  You may have seen your separation coming for some time, with subtle but inevitable indications that you and your spouse have grown apart. Alternatively, the fact that your relationship with your spouse or partner is over may come to you as a complete surprise. You may have discovered that your spouse has been having an affair, and either you, or your spouse, have left the matrimonial home as a result. You may have decided that you can’t take an abusive situation any longer and you have moved out, or, perhaps, your spouse has been charged with domestic assault and there is a court order in place preventing them from returning to the matrimonial home. Perhaps you and your spouse have had a big argument and one of you has packed a bag and left the house. Now that they, or you have decided that it's over, what do you do next? Is there a formal separation process? What is it? How and where do you begin?

How Do You know if You are  "Legally" Separated?

If you are confused about what is the difference between separation and divorce, you are not alone. A "separation" occurs when:

• A couple’s relationship breaks down,

• They decide to ”live separate and apart”, and

• There is no reasonable prospect of reconciliation.

Couples who separate may either be married to each other, or they may be unmarried and living together in what is known as a "common-law relationship". A divorce, in contrast, is something that occurs when a marriage is officially ended by a court. Only married couples can divorce. A separation does not put an end to a marriage. You remain legally married while choosing to live separate lives. In certain situations, spouses may be considered to be “living separate and apart” even though they are not physically separated. You can indeed “live separate and apart” but share your home with your spouse or partner for financial reasons, or because it is in the best interests of the children to remain in the matrimonial home until custody, access and support arrangements have been worked out. In other words, the question of whether you are separated depends on the specific circumstances of your family’s situation.

Separation is generally seen to have occurred:  when conjugal relations have ceased; when the spouses live largely separate lives and have separate routines; and when at least one of the spouses has decided that their relationship had come to an end. When at least one of the spouses no longer resides in the matrimonial home, the parties’ separation is more clearly evident. If you separate and/or divorce, you and your former spouse will need to make decisions and arrangements about a number of different issues — such as how to deal with your family residence and who will pay family debts. If you have children, you will also need to make decisions and arrangements about who will take care of the children, who will have custody, and how the children will be supported financially.

For a divorce in Canada based on separation, you can file your divorce after your separation begins - however, the divorce cannot be finalized until you have been separated for a full year. There is no such thing as a legal separation in Canada, although the term is frequently encountered in the United States. Provincial and territorial laws regarding support, custody and access apply to separated couples, both those who are married and those who have been living in common law relationships.

In order to be able to apply for a Divorce in Canada you and your spouse must have been separated for a minimum of one year. The federal Divorce Act applies to married couples once they apply for a divorce. The issues of parenting arrangements and child and spousal support are determined according to the provisions of the federal Divorce Act. Certain other issues, such as the division of matrimonial property, remain under relevant provincial or territorial laws. Different laws apply to different types of couples because the federal, provincial and territorial governments share responsibility for family law under Canada’s Constitution. The federal government is responsible for making laws related to divorce. The provinces and territories are responsible for making family laws related to unmarried couples, married couples who separate but have not yet applied for a divorce, and matrimonial property. The provinces and territories are also responsible for the administration of justice. This includes the enforcement of support and custody orders and the provision of family justice services such as parent education and mediation.

Why is the Date of Separation Important?

Many individuals ask why the date of separation is important? The fact is, under Canadian law, specifically, the Divorce Act, a married couple must have considered themselves separated for an entire calendar year, that is twelve months, before a judge is able to grant a divorce. There is another, more practical reason why the specific date of separation is important. The date of separation is one of the factors taken into consideration when a couple tries to fairly divide their assets. In some jurisdictions this separation date is referred to as the valuation date. This date is not always important for most couples and really only comes into play when one of the spouses has acquired a substantial asset around the date of separation.

Do You Need A Separation Agreement?

There is no specific legal document required to prove or formalize a marital separation. Many separating couples believe that they need to attend at court or complete complicated legal paperwork in order to be considered legally separated. Since there is no such thing as a legal separation in Canada, there is similarly no requirement for any formal documents to be written or signed for a couple to be considered separated. A separation agreement, however, does offer many advantages to a separating couple.

A separation agreement can protect your interests until the decision is made to file for divorce. The separation agreement also sets a precedent for the terms of the divorce that may follow. If you choose to obtain a divorce after having negotiated and signed a separation agreement and your case goes to court, a judge is likely to assume that since you were satisfied with the separation agreement, its terms should carry over to the terms of the divorce. For that reason, it is important that if you negotiate a separation agreement that you can live with it in the long term.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you are concerned about your rights when you separate following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.