Do I have to get Divorced?
For some couples, the divorce process is entirely overwhelming. For others, divorce runs contrary to their religious beliefs. For others, it is not financially prudent to divorce. There are a variety of reasons for which people may decide that separation is better long term solution than divorce. In some places, legal separation is a possibility, but generally in Canada, separation is only ruled by the courts when a couple decides to divorce.
How Do I Separate Without Divorcing?
It is quite simple to separate: you and your spouse just decide you are no longer in a relationship. From there, the two of you can take the practical and financial steps necessary to separate your lives. You should close down joint accounts and separate out your household goods.
If you and your spouse have joint debts, you should determine if either of you can afford to carry the debts alone. If you cannot, then you must be aware that you will remain jointly and severally liable for the debt until it is paid off. If you own a home and neither of you can afford the mortgage alone, then you should consider selling.
How Can I Protect Myself Legally?
In order to ensure that you and your spouse are sole owners of certain assets, and to protect yourself in the event a joint debt goes into default, you and your spouse should create an agreement. Separation agreements are binding contracts, and provide a clear path to separation for you and your spouse. In the agreement, you can set out who will keep which assets, and who is to pay which debts. With a binding agreement like a separation, should your spouse breach the agreement, you have a remedy through the court.
My Spouse and I have Been Separated for Many Years. Can We Still Divorce?
You can sue for divorce at any time. As long as you have been separated for at least a year, the court will consider your request for divorce. Many people are separated for excess of a year when they finally settle all divorce matters. If you and your spouse have had an extended separation, your divorce may be quicker as you may have already settled all issues. However, you should be aware that If your divorce is contested, the division of property will be from the date of trial. If you have acquired assets after marriage, they will be excluded only if they have no connection to the family property that existed at the time of separation.
If you wish to separate but not divorce, there is no specified legal regime in Canada; you just separate your life from your spouses, personally and financially. A separation agreement can provide some firm expectations regarding property and other corollary relief, but otherwise, the court will not interfere unless a divorce action or family law action is commenced.
