Approximately 9 percent of the Canadian population 15 years of age and older is either divorced or separated. When couples decide to split up, divorce is one option, but one or both parties might not be ready to terminate the marriage. Separation offers an alternative to a divorce, but it is important to understand its legal implications before you decide that it is the right option for you. Here are the answers to seven of the most common questions asked by people contemplating a separation.
What is a separation?
Separation is living separate and apart from your spouse. As long as one or both parties to a marriage or, in provinces that recognize their legality, common-law marriages decide to live separate and apart, they are considered to be separated. The law does not require a court proceeding or formal process for a separation.
What if neither my spouse nor I can afford to move out?
Moving out of the home you share with your spouse can be expensive particularly if leaving a home that you own together with your spouse and must contribute to a monthly mortgage payment. Parents deciding to separate might elect to remain in the same house for the benefit of their children and to making parenting easier.
Regardless of the reason you choose to do it, you can live separate and apart while remaining under the same roof as your spouse. As long as you and your spouse have separate sleeping arrangements and do not conduct yourselves as normally associated with a couple, such as eating meals together or going out together, the law considers you to be living separate and apart to satisfy the requirements for a separation.
If I move out during the separation, can my spouse change the locks?
Your spouse cannot prevent you from entering the home the two of you shared while living together, including changing the locks when you move out. However, a court may grant a restraining order to someone at risk of being harmed by a current or former spouse. A restraining order could prevent the offender from returning to the home of the victim. Violation of a restraining order could result in a person being jailed for committing a criminal offence.
How does a separation differ from a divorce?
A divorce ends a marriage and requires a formal court proceeding. Separation does not end a marriage, and separated couples are still married.
Do I need a separation agreement to be separated?
Separation does not automatically resolve the issues that when couples are no longer together, including the following:
- Child custody and parenting arrangements
- Child and spousal support
- Division of real and personal property owned by the couple
- Responsibility for payment of debts incurred during the marriage
- Possession of the matrimonial home to raise the children of the marriage
Unless the parties resolve these and other issues through negotiations, a court proceeding will eventually be required to have a judge make the decisions. It usually is better for the parties to control their lives by reaching an agreement than leaving the decision to a judge. The decisions you and your spouse make are written into a separation agreement prepared by your lawyer.
A separation agreement is a legally binding and enforceable contract. If you and your spouse decide to file for divorce, the separation agreement simplifies the process by eliminating the need for a court to hold hearings to decide the issues contained in the agreement.
Does a separation become a divorce?
No matter how long you and your spouse live separate and apart, it does not become a divorce. You can use separation for at least one year as a ground for filing for a divorce.
Do I need a lawyer for a separation?
A lawyer experienced in separation, divorce and other family law matters can be a tremendous source of advice and guidance. The assistance of a lawyer during the negotiations and completion of a separation agreement helps to ensure that the protection of your rights.