When you have been married to or living with someone for a considerable period of time, it is likely that most aspects of your lives, both personal and financial, will have become intertwined. As you contemplate ending a relationship, it is natural to want to begin separating yourself from your partner. Many people also find that they want to make other life changes at this time, for example to their career, lifestyle, or parenting arrangements.
It is important to keep in mind that if you and your spouse are in court litigating claims for support, custody, or access, the court will give considerable weight to the arrangements you and your spouse had before separation, and will tend to evaluate your plans and actions against that former status quo.
There are some changes that, if you hope to make them in the near future, you should begin immediately, and others that you should not undertake.
The Feldstein Family Law Group has compiled a list of common mistakes separating spouses and partners tend to make before getting independent legal advice. If you are separating from your spouse, be aware of these common pitfalls to avoid unnecessary litigation and additional legal costs.
While separation is an evolving process, and usually takes place over many months, the date of separation is important for married couples. That date is used as the date for the valuation of all property that will be divided between the spouses (See the Division of Property section for more information). In addition, parties must be separated for one year before they can apply for divorce, unless one spouse is applying for divorce on the grounds of adultery or cruelty.
You and your spouse or common-law partner do not need to go to court to settle matters between you. You can always come to an agreement yourselves and enter into a separation agreement in order to finalize issues of support, property, and parenting.
Separation agreements and other forms of domestic contracts (marriage contracts and cohabitation agreements) are regulated under Part IV of the Family Law Act. This section allows parties who are able to agree on the terms of their separation to order their own affairs as they choose, outside of the court system and the default scheme set out in the rest of the Act. In order to be enforceable, all domestic contracts must be in writing, signed by the parties, and witnessed.
If you and your spouse are separating and are seeking to resolve related issues, you might already have guessed that virtually everything (with the exception of child custody and access) will centre on money. Therefore, it is essential for all aspects of the separation process that each party has an accurate picture of the other’s finances, and in turn discloses their own finances.
When you begin a proceeding in family court, you may be required to attend a Mandatory Information Program (MIP) session. The MIP is mandatory for parties who have any contested issues relating to separation and divorce: for example, issues relating to custody, access, support, the matrimonial home, or net family property.
If your only claim is for divorce or costs, or if the matters are all proceeding on consent (which means that you and your spouse agree on everything), then a MIP session is not required. Otherwise, both parties in the family court proceeding must attend a MIP session.
Fewer than 5% of family law cases proceed to trial. But if you have filed paperwork with the court, you will be “going to court” in some sense, for introductory information sessions such as the Mandatory Information Session or a First Appearance date, and for case conferences. You should not be overly intimidated by the idea of going to court. But you should attempt to avoid going to trial.
At times, various cultural practices may conflict with Canadian law relating to marriage, separation, and divorce. When this happens, it is important to know how different cultural practices, and the laws of other jurisdictions, interact with Canadian law.
Separating spouses who are religious may also want to pursue a religious divorce, according to the tenets of their faith. Some religions do not permit divorce, while in others the power to grant the divorce rests with the parties themselves, and specifically with the husband.
Separation can be a difficult time for people. Changes in family life will add stress and exacerbate any existing personal difficulties family members were having before separation. Statistically, just over half the incidents of dating and marital violence occur after the relationship ends.
For common-law couples—i.e., couple who have lived together but never married— there is no formal process that must be followed in order to separate, and no need for divorce. Common-law couples can dissolve their union at any time, with no required legal action.
Whether your partner is of the same sex or the opposite sex, your legal rights regarding separation are identical. What makes a legal difference is whether or not you and your partner are married. Below are brief outlines of the various corollary issues you might be facing as a same-sex couple upon separation.