The legal process of ending a relationship can be confusing. Chances are that your time together as a couple means there is are property rights and child custody issues that must be resolved before you can move on with your life. For example, the law recognizes marriage as an equal partnership when it comes to rights to real and personal property. When a marriage ends, the parties are entitled to an equal share of that property. The law does not extend this rule to common-law relationships where each party is only entitled to retain property acquired in their own name during or before the relationship began. The following step-by-step account of what to expect in the legal process of breaking up should help eliminate any confusion you might have about it.
The difference between divorce and separation
When two people in a relationship decide to live separate and apart, it is referred to as a separation regardless of whether the couple is married or living in a common-law relationship. Married couples that elect to separate must begin divorce proceedings to actually end the marriage. Even though you and your spouse agree to live apart, your legal status as married continues until it is ended by a court.
There is no formal process for a separation. Once a couple splits up and the parties begin living apart they are separated. They should, however, speak with a lawyer about a separation agreement, which is a legally enforceable contract containing agreements they reach on important issues, including:
- Child custody and access to the children
- Child support
- Spousal support
- Division of property, including pensions
- Responsibility for debts
Living apart for at least one year can be used as grounds for obtaining a divorce to end the marriage. Other grounds for divorce are mental or physical cruelty by one spouse against the other and adultery.
Ending a marriage
The power of courts to end a marriage is granted by the Divorce Act, which is a federal law. A divorce proceeding is heard by courts in the province where either of the parties has resided for at least one year prior seeking a divorce.
If you reside in Ontario, an application for a divorce must be filled out by you or by your lawyer. Before filing the application, you must decide if you are only requesting that the court grant a
divorce or are you also asking for it to resolve other disputed issues, such as child custody, property division and support. Courts have the authority to resolve issues related to the divorce, but doing so could require additional paperwork, such as a financial statement, and generally takes longer. It is much easier if an out-of-court agreement can be negotiated on your behalf by your lawyer and the lawyer for your spouse.
The completed application for a divorce must be filed with the court and a copy of it must be given to your spouse. You spouse has a period of time to respond to your application through an answer.
If you and your spouse are in agreement on the issues related to a divorce and on the divorce itself, you could file a joint application. Joint applications save time, but one of the conditions of being able to use this streamlined process is that custody, support, property division and other issues must be resolved ahead of filing.
How a lawyer experienced in family law can help
If you considering splitting up with your spouse or partner, a lawyer knowledgeable in family law has the guidance and advice about your legal rights and obligations to help you avoid mistakes. The lawyer’s assistance in reaching an agreement on financial and child custody issues can ensure your rights are protected.