The Legal Separation Process
The breakdown of a relationship can be a very difficult and possibly confusing period for couples and their families; however, it is important to know what constitutes a legal separation (and the legal responsibilities that accompany it), and how it differs from divorce.
A legal separation occurs when two individuals who have been living together, either as a married or common-law couple, decide to live apart. This does not always necessarily equate to the end of the relationship, nor does it end the marriage. In contrast, a divorce occurs when a court officially ends a marriage. What this means is, you do not have to go through a formal process or obtain any documents to legally separate, but there is a formal process in place if you are married and wish to get a divorce. Separation is an evolving process that can take place over several months.
Criteria for Legal Separation
In order to legally separate from your partner, you only have to want to live “separate and apart” from your partner. Only one of you can want this in order for you to legally separate. “Living separate and apart” would involve:
1. Deciding that you want to end your marriage or common-law relationship; AND
2. Starting to behave in a way that demonstrates that you want to end the relationship.
When determining whether spouses are indeed living “separate and apart”, the courts look at factors such as whether the parties:
– Share a bedroom
– Have sexual relations
– Prepare and eat meals together
– Share household duties and chores
– Attend social events together, as a couple, etc.
Parties may choose to live in separate homes; however, this is not necessary in order to be legally separated. It is indeed possible to live “separate and apart” in the same house in Ontario, and still be separated. This is not uncommon, as many spouses are unable to move out due to childcare requirements, housing needs and financial circumstances. Generally speaking, it is not recommended that either party leave the house before issues surrounding the separation are settled. This is because the party who leaves may be relinquishing their rights to claims made later on, such as exclusive possession of the matrimonial home or custody of children. However, this is dependent on the specific case – where there may be tension between parties; financial difficulties; or there are cases of partner abuse, one party moving out may be preferred.
Upon separation, issues surrounding separation should be addressed as soon as possible, including factors such as child support, spousal support, division of property and assets, child custody, and what is to be done with the matrimonial home. In cases where there is agreement on such issues, you and your partner should create a written legal separation agreement. This is not required but recommended. This agreement would allow the couple to live separate and apart without legally ending their marriage, and to settle issues related to the separation.
You may prepare this agreement on your own, or have a lawyer prepare one for you. The latter is recommended, as it would allow parties to receive independent legal advice and comprehend the terms
before signing the separation agreement. Where there is disagreement in addressing issues, you may ask a family law legal professional to help or ask the court to decide.
Applying for Divorce after Separation
If you are claiming that your marriage has broken down because you and your spouse/partner are separated, there is no need to wait to apply for divorce. However, parties must be separated (living apart) for at least one year before they can be granted a divorce. If you are claiming marriage breakdown due to cruelty or adultery, you can apply for divorce at any time. If you apply for a divorce on the grounds of one-year separation, you are able to live together again for up to 90 days in efforts of reconciliation. In the case where things do not work out, you can then continue your action for divorce as though that time was never spent together (i.e. the one-year separation period will not be terminated or interrupted, as long as the cohabitation does not last more than 90 days).
In cases where there are children of the marriage, the courts will generally only grant a divorce when they are satisfied that there have been reasonable arrangements made for child support. Often, couples remain separated for years and only go through a formal divorce if and when one of them chooses to remarry.
One thing to keep a note of is the exact day that you and your partner separate, as this is the ‘date of separation’ that will affect the division of property (such as the matrimonial property) as well as the granting of divorce (as the one-year period begins from this separation date). This date may be disagreed upon; thus, in order to figure out the date, you can reflect on when the parties began living in separate homes or sleeping separately; when they separated their finances; when they begin doing things individually; and any sort of written proof of intent to separate or not living as a couple.
The laws surrounding legal separation and divorce can be complicated. Nothing in this article should be considered or relied on as legal advice or opinion. This article only provides general information and should you have any further questions regarding the legal separation process, please contact us to book a free initial consultation 905-366-0202 or through our website here.