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Understanding the difference between Divorce and Separation in Ontario

Knowing a relationship must come to an end for the well-being of either partner or a family, is overwhelming.  A marriage is predicated on a perceived level of permanency; the ending of which has inherent ramifications on partners and family life.

While legal separation and legal divorce sound similar, it is important to understand that unlike divorce, legal separation does not legally end a marriage. Divorce legally dissolves a marriage which means both partners are able to remarry, while legal separation does not. A divorce is never the automatic outcome of two married spouses living separate for several years.

What is Legal Separation?

In Canada, there is no legal process to file for legal separation. Separation is official when both partners choose to stop living together and do not intend to live together again.  

In this situation, a couple may choose to live separately or live separate and apart under the same roof. Legal separation allows spouses to live separate but retain marital status. If a couple chooses to live apart under the same roof, courts generally require evidence to support that the couple is living independently of each other while sharing a common roof.

For example, circumstances that might be reviewed by courts may include: confirming that the each partner is occupying a separate bedroom or that partners are not attending social events as a couple. Socially and personally, each partner needs to prove they are indeed not interacting in a marital way or presenting themselves to the world as spouses. If a couple is using legal separation to initiate the divorce process in Canada, spouses must live separate and apart for no less than one full year (although there are other claims to a divorce, being adultery and abuse).

Separation Agreement

Legal separation is often defined by a separation agreement. Issues including divorce are addressed in a separation agreement. Crafting a mutually beneficial separation agreement entails dealing with issues such as child support, custody, visitation rights and privileges, spousal support, as well as, division of property. A separation agreement is legally binding.

It is important to review the details of the agreement with a lawyer to understand what the agreement stipulates before it is signed. If both partners have received independent legal advice and agree to the terms of agreement with financial disclosure the terms of the agreement will be upheld by the courts; having said that, the parties do not have to file the agreement with the court unless they require enforcement.

What are the Benefits of Legal Separation?

Legal separation is a trial period that offers partners the opportunity to live separately and decide what their best options are. Over this period of time, partners may reconcile differences and resume marriage or may start divorce proceedings so both partners can move on with their life.  Legal separation might also be the right option for partners who have religious reasons against divorce.  It is important to note, there are time limitations that commence upon separation that may greatly impact a parties ability to claim amongst other things entitlement to support or property.

The separation and divorce specialists at Epstein and Associates can help you make the right decision for your circumstances and ensure that your rights are preserved. Contact us today to book a complimentary consultation for your family law needs. We can help you create a new beginning for you.