The act of separation is when partners – either married or common-law – choose to live apart. Those who have separated often set out their rights and responsibilities after separation in a document known as a separation agreement. In the context of marriage, separation does not mean the marriage has ended. Rather, a divorce is needed to legally end the marriage. Therefore, for the purposes of this blog post, we will outline what a separation agreement is, the issues considered within one, and how it differs from marriage contracts and divorce.
What is a Separation Agreement?
In Ontario, separation agreements allow partners to live ‘separate and apart’ without officially ending the marriage. Technically, ‘separate and apart’ is not synonymous with living in separate homes. Rather, legal separation can involve living in the same house; as long as both individuals have separate rooms, meals, and finances.
Within a separation agreement, the following issues are addressed:
- Property:
- What happens with the home?
- Are there any specific allocations of items within the home?
- How will shared assets and debts be addressed? Pension and life insurance?
- Children
- Who has custody over financially dependent children?
- How is responsibility for deciding matters on education, health, and welfare of the children allocated?
- Who is/are the child(ren) living with? Is there a specific living schedule?
- Who is paying child support? How much and how often?
- Are there any special expenses specific to the child(ren)’s circumstances?
- Spousal Support
- Who is paying spousal support? How much and how often?
- What date with the spousal payments end?
- Are there any tax implications?
To make this agreement, with the addressed issues, legally binding, it must be drafted and signed by both partners in front of a witness, who must also sign the document. As well, the agreement should include the date of separation, as that gives motion for the valuation of property that will be divided between the couple.
How is a Separation Agreement Different from a Marriage Contract and Divorce?
A marriage contract differs from a separation agreement. Commonly referred to as a prenuptial agreement (or a prenup), a marriage contract is a written document that outlines the expectations within the marriage, and what is to be done if separation were to occur. Most often, marriage contracts address issues of property division and spousal support. If a couple were to separate, these issues addressed and agreed upon within the marriage contract would carry into the separation agreement. However, a marriage contract cannot discuss issues regarding children. Thus, if separation were to be sought, child responsibility and support are to be addressed within the separation agreement proceeding the marriage contract.
A divorce cannot occur without a separation agreement. Specifically, spouses cannot apply for divorce until one year after separation. Courts will only grant the divorce if they are satisfied with the arrangements involved in the separation. The exception to the one-year rule of separation is if the spouse is applying for divorce on the grounds of cruelty or adultery.
How Can We Help?
Our office will work closely with you in drafting Cohabitation Agreements, Marriage Contracts, and Separation Agreements. We also offer all our services remotely. Our lawyers are happy to meet with you virtually or at a location of your choice. Get in touch with us to set up a free 30-minute consultation.