Legal Separation

To get a divorce in Canada requires that you and your spouse be separated for one year – something a lot of people call a legal separation, although this is not a legal term.

6 Common Legal Separation Myths in Canada

There are a number of commonly held beliefs about legal separation that simply are not true. Here are some of the more pervasive ones:

Myth #1. The first is that to be legally separated, you and your spouse must live in different homes. This is not true. The courts realize that often this is not financially feasible, and if you have children, it is in your and the children’s best interests to stay at the matrimonial home until custody and access arrangements have been worked out.

Myth #2. Another myth is that a temporary reconciliation ends a legal separation. This is not true. The Divorce Act’s policy is to make sure that couples try to work things out before a divorce is granted. Because of this, the Divorce Act allows couples to reconcile for a period or several periods totaling up to 90 days without affecting the one year separation period.

Myth #3. A third myth is that the exact date the legal separation started does not matter. This is not true. Obviously one full year of separation needs to pass before a divorce is granted. However, the date of separation is also important for other legal issues, such as the division of property. While this may not matter in some cases, in periods where assets values have changed dramatically in a short period of time, the exact date of separation can make a significant difference to how property is divided.

Myth #4. A fourth myth is that both parties need to agree to a legal separation. This is not true. If one spouse unilaterally decides to separate and takes action in that regard, the couple is separated, even if the other spouse does not want this.

Myth #5. A fifth myth is that there needs to be a separation agreement for the parties to be legally separated. This is not true. A separation agreement is a document that outlines all the rights and responsibilities of the spouses whose marriage is ended. Normally, it will need to be agreed upon before a divorce is granted. However, it is not necessary to sign a separation agreement, or any other document for that matter, for a couple to separate.

Myth #6. A sixth myth is that you must get a divorce if you are legally separated. The main thing a divorce does is allow you to remarry some time in the future if that is what you choose. Many people, for religious or other reasons, prefer not to take that final step, and it is not required. You and your spouse can stay legally separated for many years if that is what both of you choose.

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If you are considering divorce -- or have already made your decision -- you're invited to call me at 613-519-0320 or email me on my contact form. I'll explain how you can protect your legal rights, reduce the expense of divorce, and protect your children from undue emotional stress.