What is a Separation Agreement?
Aug 31, 2022
When you’re considering separation, or, you are facing a lot of challenges. Separation is an emotional time, and you may be worried about both your present and future life. If you have children, you want to provide the best life for them. They might want to know what their lives will look like after you separate. You may have property you want to keep, and you may be concerned about support. This is where a separation agreement can be advantageous.
Creating a Separation Agreement is often the first step when a marriage breaks down. You can create an agreement on your own, negotiate with lawyers or work together through mediation.
A properly-prepared Separation Agreement is a legal document that outlines your agreement with respect to parenting, child and spousal support and property division.
Difference between Separation and Divorce
Separation is when a married or cohabitating (common law) couple chooses to no longer live with one another. There is no formal process to separating in Ontario, you simply choose to live “separate and apart.” If you are cohabitating, separation effectively ends the relationship.
If you are married, you need a Divorce Order to legally end the marriage.
Separation In Ontario
Here are a few facts about separation in Ontario:
- You do not need to “file for separation” – you simply need to choose to live apart.
- There are important definitions of separation between Ontario Family Law and Federal Tax Regulations that could affect your finances.
- Separation does not have a time limit – you can be separated indefinitely. You can be separated while married but only a divorce ends the marriage.
- You can be separated and live in the same house.
- A Separation Agreement is not required, though it is strongly recommended.
When you separate – especially after a long relationship – there are many issues that need to be resolved. An experienced lawyer can raise points you may not have even considered, and family mediation, or negotiation can help you come to an agreement to move forward.
Advantages of a Separation Agreement for Cohabitating Couples (Common Law Marriages)
Common law marriages are recognized in Ontario, but unlike marriage, there is no official process for either beginning or ending the relationship.
For purposes of spousal support, a couple is considered to be in a common law relationship in Ontario if they have been living together in a conjugal relationship for at least three years, or they have lived together for less time, but have a child together (by birth or adoption).
Because there is no formal process to end a common law relationship, a Separation Agreement sets down the terms of your separation, including property division. A Separation Agreement is especially helpful for spouses with children, or spouses who wish to begin a long-term relationship with another person.
Since it is a legal document, it can be used to help enforce the terms of your separation and avoid confusion when facing family law issues.
Advantages of Marriage Separation Mediation – Divorcing Couples
Divorce is covered by federal laws in Canada. Separation is grounds for divorce if you have been living apart for at least one year.
While there is a legal process to end a marriage (Divorce), a Separation Agreement can act as a foundation for your future divorce agreement. There is also generally no legal reason you need to divorce unless one partner wishes to remarry. Divorce does affect the time limits for seeking property division and may affect rights regarding possession of the home, employment benefits and the ability to seek support or a division of property.
Remember, though, that separation agreements are legally binding, so errors or mistakes could cause legal problems.
Seek Legal Help with Your Separation Agreement
It’s advisable to have legal help when setting up your Separation Agreement. Each partner should retain their own lawyer to protect their individual rights.
You can build a Separation Agreement yourselves, or through a more formal process like mediation or negotiation.
If you create it yourselves, or use a template as a starting point, it is a good idea to have it reviewed by your lawyers before finalizing and signing. No family follows a template. A lawyer can help you customize your document to ensure it meets your unique family needs.
Enforcing Your Separation Agreement
If you file your Separation Agreement with the courts, the court can help reinforce and support the terms of your agreement. In addition, filing your agreement means you can call on the Family Responsibility Office (FRO) to enforce child or spousal support.
Separating or Seeking Divorce? Contact the Kelly D. Jordan Family Law Firm
Whether you are considering marriage separation mediation, or want legal advice when you are separating or divorcing, the experienced family law team at the Kelly D. Jordan Family Law Firm is here to help. Contact us today, or start your family law case online.