How Do I Separate From My Spouse?

If you are thinking of separating from your spouse, it’s more likely you have tried to repair your marriage relationship, but in vain. You may be wondering how to legally separate from your spouse. For sure, separating gives time to each spouse to decide whether they want their marriage to move or not.

Many people wonder how to separate legally. In Canada, you don’t have any legal form to fill to show you are in the process of separating; you are only required to live separately and apart from your spouse.

The next step after separation would probably be to think of divorce. But this is only an option; you can choose to live separately and never file for divorce.

What The Law Requires

You can remain separated for as long as you want in Canada. But to apply for divorce, you are required to have lived apart for at least a year. That way, you have legal rights to file for divorce. The separate living does mean that your spouse has to be living in another province or territory. You can remain in the same house and still live separate lives. Generally, when a spouse is contemplating separating, one spouse must have:

• Behaved in a way to show they no longer want to stay married.

• Decided to end their marriage relationship.

However, staying separated from your spouse gives you a chance to move on with life and get into a new relationship. In such a situation, you would be astonished to find all your marital assets being taken over, and the chances are that you would also miss on child custody.  

Once you choose to separate, you will have to learn about your legal rights and responsibilities, and what is legally entitled to you. Some of the decision you have to make include:

• How will you stay in your matrimonial house: After separation, you and your spouse have a legal right to remain in your matrimonial house in Ontario. If you decide to sell the house, you should have the right to have an equal share of the value of the matrimonial home. Unlike in a common-law relationship, a legally married spouse cannot lock the other out because they own the house. Not unless a separation agreement or a court order is indicating that one spouse can’t live there. Another reason you may not have equal rights is after divorce is when your name was not included in the title of your home.

• How you will divide the assets and liabilities

• Who will have the child custody and child support

It is worth noting that your case’s situation will determine any right or legal responsibility you have. The best decision you can make in such a situation is to have a lawyer guide you on the steps to follow for the process of separation or divorce.

There are many reasons why you may not want to rush to a divorce process until you are satisfied with how your family matters will fall in place after divorce. This is possible with a separation agreement.

You Need A Separation Agreement

After separating, you need to agree with your spouse on some important family issues. This will be possible with the help of a separation agreement in Ontario. A separation agreement is vital when couples want to repair their relationship or want a smooth divorce.

Such an agreement remains in force until there is a change of circumstances and the court changes it. If you want to avoid pressure related to divorce, then a separation agreement would ensure each party is not overwhelmed by making decisions when divorce is underway. More important is when you have children that need support, custody, visitation, among other things. Where you and your spouse can’t agree, you will be forced to have the help of an experienced family lawyer or have the judge review your case and make family decisions for you.

Drafting A Separation Agreement

When coming up with a separation agreement, you need to consider that the separation agreement has to be binding and enforceable. That way, the court can order you or your spouse to do whatever is stated in the agreement. Some of the issues you may consider when drafting your agreement includes:

• Reasonable child support which is in line with the Federal guidelines for child support in Canada

• Alimony

• Decision making responsibility and parenting time for children

• Division of property during divorce

Where you draft a separation agreement and realize afterward that there are mistakes or the court disagrees with some issues that may not be in the best interests of your child, you have the right to make a new one. Each of you should get independent legal advice before signing up to such an agreement.