A separation (no longer living as a couple) is the first step you need to take in order to dissolve your marriage. Divorce law in Canada states that you must be separated from your partner for a full year prior to being granted a legal divorce by the court. A separation agreement can assist you in the process of divorce.
There is no such thing as a “legal” separation in Canada, you simply need to begin living separately, preferably with some sort of documentation that this has taken place. The creation of a separation agreement is a legally binding contract. A separation agreement is between a couple setting out the responsibilities and rights of each party. This can greatly simplify the process of divorce and eliminate any uncertainty as to what will happen.
What Does a Separation Agreement Do?
If you know what a marriage contract is, a separation agreement is very similar. It is a legally binding agreement that will dictate the financial and family responsibilities of both parties at the end of the marriage. These responsibilities include:
Child Custody & Visitation
- The rights of the children are paramount in any separation agreement. This will dictate which parent will be the primary caregiver, other matters of custody, visitation rights, and more.
- Child support will be paid to the primary caregiver of the children by the other parent to maintain the children’s standard of living. If you would like to understand approximate amount of child support that could be involved, please use our Child Support Calculator here (LINK HERE).
- If one party is financially dependant on the other, spousal support will have to be included in the separation agreement. Spousal support is also known as alimony.
Property, Assets, and Debt Division
- All property, assets, and debt will have to be divided between the separating parties. The total can be very tricky to calculate and you may require the help of a separation lawyer experienced in real estate and negotiations. Please note that it is rare for the division to be negotiated as a 50/50 split.
What’s the Advantage of a Separation Agreement?
When separating, most couples wish to have control over the fallout, both in terms of family and finances. If a separation agreement is not in place, or a marriage contract was not signed prior to the marriage, then the terms of a divorce can end up in court. Most couples wish to avoid the time, cost, and stress of court.
The separation agreement can be negotiated over the course of your year-long marriage separation. Once you come to an agreement on a point, such as spousal support, it can be added to the separation agreement and thus be legally binding. A separation agreement is also not necessarily set in stone. Both parties can agree to reopen it at any point to renegotiate any of the points contained within. It is highly recommended that you utilize an family lawyer in these circumstances in order to ensure your rights and interests are fully protected.
What Happens after the Separation Agreement is Signed?
A marriage separation does not necessarily to lead to a divorce.
The only legal reason for a divorce is to allow both parties to remarry another person, as you may only be married to one person at a time in Canada. That said, most couples prefer to complete their separation with a divorce, as this can represent a clean break and a new beginning for their lives.
As the terms of a separation agreement will continue into a divorce, it can greatly simplify the process, as many of the negotiations and arrangements have already been completed.
If you have separated from your spouse and wish to create a separation agreement to protect your rights and dictate your responsibilities, Baidwan & Baidwan Lawyers LLP is ready to help. Baidwan & Baidwan is a full-service law firm that specializes in family, criminal, and real estate law. If you need a family divorce lawyer in Brampton who has extensive experience in negotiating marriage contracts and separation agreements, Baidwan & Baidwan is here for you. Call us at 905-230-8888 for an initial consultation.