Separation, Divorce, and Annulment: What are the Differences?
Marriage in Canada (for civil purposes) is defined as a lawful union of two persons to the exclusion of all others. If you are legally married and wish to end your marriage, the most common first step is to separate from your spouse. Once you and your spouse have been separated for a year, you will be eligible to get a divorce, which legally ends your marriage, as long as you agree on all issues of custody, child support, spousal support, and property division. A third option, annulment, may be available under certain rare circumstances.
Which option is best for you? The answer, explains Calgary family lawyer Sean O’Neil
, depends on your personal situation.
1. What is separation?
Separation means living separately and apart from your spouse. While this usually means living in separate places, it isn’t a requirement. If you and your spouse continue to live under the same roof, you do have to be able to prove that you longer have a marriage-like relationship, such as not sleeping together, sharing meals and chores, or going to family events together.
2. When can I begin divorce proceedings if I am separated?
You can begin divorce proceedings at any time during separation by filing a divorce application at the local branch of your province’s Superior Court.
3. Can I file for divorce without being separated first?
Living separately is the most common ground for divorce. Under the federal Divorce Act
, you may also file for divorce on grounds of adultery, or mental or physical cruelty. If you seek a divorce on either of these grounds, you can file a divorce application without needing to wait a year before a judge will grant you a divorce. Make sure to speak with a lawyer first, as you will need to provide evidence to the court.
4. What is a separation agreement?
“A separation agreement is contract dealing with the practical matters of support and property division,” explains Mr. O’Neil. “Since in most cases, a married couple must wait a year to get divorced, resolving these issues during the separation period increases the possibility of being eligible for a divorce as soon as the one-year mark arrives.”
A separation agreement typically outlines terms for spousal and child support, when support will be paid, who will have custody of children, and how assets such as property and vehicles will be distributed.
5. Do I need a lawyer to draft a separation agreement?
You and your spouse can make your own separation agreement. The court will place some weight on an agreement made between the parties without counsel. However, if you want to make sure the agreement is legally enforceable, you should have a lawyer review and sign off on it, cautions Mr. O’Neil. If a separation agreement doesn’t meet statutory objectives for child and spousal support, or asset division, there is a real risk that it will be set aside in court, even if several years have passed. Child support is always reviewable despite what an agreement might say, even if the parties get independent legal advice. In Alberta it is a requirement that the parties each have independent legal advice if an agreement dividing property is to be enforceable.
Another risk is that if an agreement is unfair, you may not have the knowledge to realize it. A lawyer’s job is to inform you of your legal rights and responsibilities, and to ensure you don’t sign an agreement that doesn’t serve your best interests.
6. Can I use the terms of my separation agreement to finalize my divorce?
Provided you and your spouse agree on all issues related to support and asset division detailed in your separation agreement, once a year has passed, getting the actual divorce usually becomes a matter of paperwork.
On the other hand, if you and your spouse are unable to resolve all issues using a separation agreement, you will to have to follow the procedures for a contested divorce set out by your province. Once a divorce is contested, both you and your spouse may wish to retain legal counsel to begin negotiations.
7. Do I have to get divorced if I am separated?
There is no legal requirement to get divorced if you are separated. A main reason for getting a Certificate of Divorce is to prove that you’re no longer married, which allows you to remarry. If you have no plans to remarry, you may find a permanent separation suits your circumstances.
8. What if I am in a common-law relationship?
If you and your partner are considered common-law spouses under your province’s family laws, there is no legal procedure for formally ending the relationship. Depending on the length of the relationship, you may be entitled to spousal support, child support, and division of assets accumulated during the relationship. A lawyer can assist you in determining your rights.
9. What is an annulment?
An annulment is a court declaration that a marriage is void and never existed. Very few marriages are annulled in Canada. The main reason for annulment is that one party lacked the capacity to consent to marriage due to age or diminished mental capacity.
is a Calgary barrister and solicitor focusing on family law, adoption law; child custody, child support, divorce, and visitation rights. He can be contacted at 403-910-0401 or
. Visit www.oneillaw.ca
for more information.
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