Separation and Divorce - Legal Advice for Canadians

Nobody goes into marriage thinking that they will ever be separated from their spouse, much less divorced. Unfortunately, separation and divorce does happen, and if it happens to you, you will want to make sure your rights are protected and that you can begin your new life with as many advantages as possible. It is a very good idea to get a divorce attorney to guide you through this process so that you are not surprised by any detail that you might not have been aware of.

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Separation
In a legal separation, a husband and wife live apart. This arrangement is legalized either through a court order or a written agreement that has been filed with the court. The order or agreement also specifies whether one spouse will pay support to the other, and what arrangements will be made for child custody.

The nature of a separation is temporary. Separations are not meant to be permanent; either the couple will reunite or they will divorce. In many cases, a husband and wife simply need time and space in which to gain some perspective on their marriage. During this time, the court may order mediation or counseling for the couple, or the couple may decide to pursue it on their own. Neither person may remarry during this time, because they are still married, and because a separation recognizes the possibility that the couple may reunite.

Divorce
A divorce is also called a dissolution of marriage. It means that the marriage is dissolved, it no longer exists, and the legal bonds between the partners are cut for good. When a divorce is granted, the court decides on the distribution of property, spousal and child support, and custody of any children.

Most divorces today are no-fault divorces, which means that neither party nor the court assigns blame for the breakdown of the marriage. This is usually listed in court documents as “irreconcilable differences” or “irretrievable marriage breakdown.” In the vast majority of cases, divorces are not contested, and the spouses work through their property and custody issues on their own, with the supervision of their lawyers. The judge then receives this agreement in a short hearing and usually approves it. Sometimes, however, the couple cannot agree on the distribution of property, spousal support, or the custody of children. In those cases, the court must intervene and make those decisions on their behalf.

Annulment
A third but less common option is to annul a marriage. Annulment is a declaration by the court that the marriage was never valid in the first place. The reasoning behind this is that a person must give fully informed consent to enter into a marriage, but if there has been deception, one partner was not able to give fully informed consent. In those instances where they are awarded, the reasons usually include one partner hiding important information from the other, such as a mental illness, a criminal record, a drug or alcohol addiction, or an infectious disease or STD.

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