Things To Know About Marriage Separation in Canada
Do I need to file something to legally separate? No. There is nothing you need to file to legally separate in Canada. A separation is actually a contract between two partners that outlines when they will separate and the terms of the separation.
Do I need to separate in order to divorce? Other than the result of an at-fault divorce which involves adultery and cruelty, you must be legally separated for a minimum of one year before you can finalize a divorce.
You can be living in the same house and still separated. You simply need to be living separate lives, separate routines from one another. The easiest way to prove this is obviously living at separated locations, but financially or due to children involved, this could be very difficult. It is also difficult however, to prove being separated while living together and we recommend legal representation to help should this be your case.
The One Year Separation Waiting Period
In order to file for divorce due to separation, two people must be separated for a minimum of one year before a divorce can be finalized. There is however no maximum two people can be separated for, and legally no obligation to obtain a divorce unless either party wishes to remarry. While one year is required to divorce, keep in mind the process can be started immediately. Check out our divorce in Canada page to find out more information on divorce rules.
The courts are in favour of people ‘working on their marriage’ and therefore two people can spend up to a total of 90 days together, either all at once or in stages within the year without disrupted the waiting period for the divorce. The 90-day period allows for people to try and work things out without worrying that it could delay the divorce proceedings should things end up still not working out. Once more than 90 days have been spent back together, then another year waiting period will be required.
A Separation Agreement: What Is It, What’s On It & Do I Need One?
What is a separation agreement? In the simplest terms, a separation agreement involves simply agreeing to separate. A separation agreement is a legally binding contract between two married people where they agree to no longer be together and decide what happens with their shared belongings, property, debt, and children.
- 1. Legal Names of each partner.
- 2. Date you decided to separate.
- 3. Questions regarding your children (if applicable):
- Where will the children live?
- Who will get custody of the children?
- Will there be visitations and how often will that be? Consider holidays such as Christmas and other events such as birthdays.
- Will child support be paid?
- How much will be provided for child support?
- For how long will child support be paid?
- 4. Questions regarding your property (if applicable):
- Who gets which item? Make a list and decide.
- If you own a house together…
- Does one partner want to buy the other out?
- If not, will it be sold and who will look after that?
- Who will be looking after the house or living in it until it is sold?
- Will proceeds be divided equally after the sale?
- 5. Questions regarding your debt (if applicable):
- Decide what to do with debt due to joint decisions but held in only one partner’s name.
Who looks after which debt?
- Questions regarding your pensions & registered accounts (RSPs, RESPs) (if applicable):
- Will pensions and savings accounts be split? Consider spousal contributions and how you want to divide these accounts
- Who will be permitted RESP transfers?
- 6. Questions regarding your support for each other:
- Was one spouse dependent on the other or give something up for the other?
- Will support be provided?
- For how long will support be provided?
- Avoid unfair enrichment.
- 7. A lawyer would be able to come up with specific and tailored questions depending on your own personal situation and circumstances.
Do I need a separation agreement? Yes, you do need a separation agreement. In some form or another, you must agree to separate and come to terms with what that means regarding everything you’ve shared. A separation agreement can be done verbally, but this becomes much more difficult to prove in court, especially if one spouse decides they no longer want to honour the original agreement. It would be ideal to get one in writing with as much detail as possible, but do so carefully.
While separation agreements can be drafted without a lawyer, it is strongly recommended that one be hired in order to ensure it follows accurately with provincial law. This will further help avoid any issues in the future should one partner attempt to dishonor the original agreement. Also if you can’t agree on everything, then a mediator or lawyer should be involved to help come to an agreement. A disagreement is the beginning of a contested divorce and representation would be very beneficial.
Most importantly, in order to finalize the agreement, it must be signed by both parties involved. Do not take this agreement lightly. This is a binding contract that will be used in your divorce. It will often be first to consider even if it is not standard practice in a divorce.