We often hear the word 'divorce' in the media, but this is not a critically important issue. It simply means that you are no longer married to your spouse.
Most couples in Canada divorce on the grounds of marriage breakdown after completing a one-year trial separation. Individuals can obtain a divorce without a one-year separation when adultery or cruelty has occurred, but these must be proved at a hearing when either party does not consent to a divorce based on these grounds. The longer the dispute goes on, the more difficult and expensive the process becomes. Because of this, we usually advise clients to wait the one year before proceeding.
When negotiating the terms of a Separation Agreement, it is also beneficial to negotiate the terms of the divorce. You should consider important factors including the grounds of the divorce, which party will apply, and who will pay for the costs. By having a clear set of guidelines in advance, it reduces potential conflicts down the road.
Division of Property & Equalization Payment
From the perspective of Canadian law, married couples are treated very differently from couples who are not married.
If you are married, the Family Law Act provides a fairly strict regulatory scheme. Marriage is considered an economic partnership. Both parties share in the growth of assets – and debts – that have accumulated during the course of the marriage. The spouse with the higher Net Family Property (net worth) will owe one half of the difference to the other party.
If you are not married, there is no entitlement to property division. However, even if you are not married, there are other options you may wish to pursue. One such option is a Claim for Unjust Enrichment, sometimes called a Constructive Trust.
Domestic Contracts: Separation Agreements, Cohabitation Agreements and Marriage Contracts
Many couples resolve their differences regarding a relationship breakdown by negotiating and signing a Separation Agreement. This agreement specifies in writing the responsibility of each party, including the division of assets, support payments and/or child custody/support.
We have also seen an increase in cohabitation agreements and marriage contracts. Clients who have been through a separation often see the benefits of such agreements.
Where to Start
For most separations, the substantive issues are not overly complicated. Once we have helped you choose the appropriate way to proceed with your separation, the substantive issues can be resolved. A signed separation agreement can help you get from where you are now to where you want to be. This agreement facilitates the resolution of issues such as children, assets and income.
We can help you select from of the following options when going through a separation:
3. Collaborative Family Law or C.F.L.
4. Five way facilitated settlement meeting
5. Court (as a last resort)
For more information, please visit the Government of Canada website at http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/.