Understanding The Marital Separation Agreement

When a marriage is on the rocks, couples often get a legal separation. Under the Ontario Family Law Act, spouses are considered separated when they live separate and apart and there is not much of a chance that they will resume cohabitation. Understanding the marital separation agreement is very important.

Territorial, provincial and federal governments share responsibility for family law under Canada’s constitution. The Divorce Act, which applies throughout Canada, is a federal law; however, the process of getting a divorce falls under territorial and provincial law.

To get a divorce in Canada, the couple must have lived separate from each other for one year. Most people call it a legal separation; in reality, the term, filing for legal separation, does not apply in Canadian law. A marriage separation comes into effect the moment the couple decides to live apart from each other.

Another misconception that most people have is that a divorce comes into effect automatically after one year of separation. In fact, a marital separation can last for very many years if the couple involved opts to forego filing for divorce. There are several grounds for divorce in Canada, all requiring the couple to complete a full year’s separation period; however, the exception to this rule is when a spouse files for divorce on the grounds of cruelty or adultery.

Components of a Marital Separation Agreement

A marital separation agreement is a legally binding contract between the two spouses, detailing each party’s rights and responsibilities, as well as other important issues. The law does not dictate the form of agreement. Couples may choose to have a verbal or written agreement; however, proving a verbal agreement in a court of law is very difficult and costly. Ideally, couples should seek the services of a qualified and experienced lawyer to draft the terms of the agreement. The major components of a binding and enforceable agreement include:

• The full legal name of each spouse
• The date of separation
• Matters concerning children, if any, including custody, access, and child support
• Whether or not spousal support will apply, and if it will, how much, when and for how long
• Assets division
• Treatment of debts
• Issues concerning pensions, RESPs, RRSP, etc

Although spouses may opt to draft their own marital separation agreement, the terms must be clear and reasonable. Canadian law treats separation agreements very seriously; therefore, courts are well within their rights to reject unreasonable terms. When it comes to spousal support and division of property, the courts go by the terms stipulated in the agreement; therefore, each party must seek guidance about their legal rights from a good lawyer, before signing the agreement. In situations where a couple fails to agree on the terms of the contract, mediation is necessary.

The Difference Between Separation and Divorce

A marital separation agreement applies when a couple decides to separate and live apart from each other due to the breakdown of their relationship. It differs from a divorce, which comes into effect when a court ends a marriage. Separation can apply to a couple in a common law relationship as it does to a married couple, in comparison, only legally married couples can get a divorce.

Separation:

When a couple separates, both spouses enter into a separation agreement. This agreement will outline a custody agreement for the children. It will also outline child support and spousal support. A separation will also outline the terms in dividing up the family’s property.

It is not necessary for spouses to get divorced to enter into a separation agreement. They also do not need to get divorced to get an order for child custody, child support, spousal support, and dividing up the family’s property. A couple can stay separated forever if they choose to do so. When a previously married couple separates, they cannot remarry until they get a divorce. After the divorce is granted, spouses cannot remarry another person until 31 days after the court granted the divorce.

Divorce:

A divorce legally ends a marriage. Spouses cannot remarry another person until the divorce is final. There is only one legal ground for divorce, it is when a marriage is not working. In order for spouses to be eligible for a divorce, they must be living separate lives for at least a year.

If the spouses have been living apart and separate for a year and one spouse wants a divorce and the other does not, the court will still grant the divorce. Only one spouse needs to apply and agree to the divorce.

Why Get Separated and Not Divorced?

There are certain circumstances where a couple will benefit more from a separation rather than a divorce. If neither spouse is looking to get remarried to another person, separation can be better for the couple than divorce. When a spouse has medical coverage through the other spouse’s employer, a divorce may end the spouse’s coverage. If a couple remains separated, medical coverage will continue for both parties.

Situations where a Marital Separation is better than Divorce

• Where a spouse wants to retain the advantages of the couples healthcare plan
• Where religious beliefs conflict with the ideas of divorce
• Where the couple wants to avoid the legal costs and processes associated with filing for divorce
• Where couples want to give themselves some space and time apart to try and resolve their differences, or finally settle for divorce if all else fails

Choosing to have a marital separation is a very important step that deserves careful consideration. The decision affects the couple, their children, and even their families and friends. The marital separation agreement is binding; therefore, each party must honor the terms of the agreement. It is always important to employ the services of a good family law lawyer to draft, guide, or review the contract before signing.

While the breakdown of a marriage can be difficult, both parties need to communicate in order to get a separation order in place that benefits both spouses. It is also necessary to communicate in order to decide whether a divorce is an option or not. Finally, if you would like to separate from your spouse, you should hire a family lawyer to help you draft a marital separation agreement.

Physically Living in the Same Home While Separated

A couple can physically live together and still live in the same home. The couple must be living independent lives while living together. The court will look at several different factors to determine if the couple is separated even though they’re living under the same roof. Basically, the court will seek to know want to know whether;

• The couple is still sharing a bedroom
• The couple is still having sexual relations.
• There is the couple is communicating normally
• One spouse is providing domestic services for the other. For example, if one spouse is cooking for the other and doing the others laundry, they may not be considered living separate.
• The couple still eats meals together. If so, they may not be considered living separate.

In addition to all this, the court will also want to know whether or not the couple attends social activities together. If they are, it will prove to the court that they are not living separate lives.

Get a Free Consultation with our Family Law Attorneys and Divorce Lawyers

Any reputable family law attorney can help you with these matters. Each family lawyer in Toronto here at Fine & Associates is ready to take your case on your behalf. Schedule a free consultation.