Difference between revisions of "Separation and the Law"

This section discusses the legal aspects of separation, the rules relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. The information applies to married spouses and unmarried spouses.  

Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement.  

You can find more information about separation agreements in the chapter [[Family Law Agreements]] within the section [[Separation Agreements]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the ''How Do I?'' section of this resource. Look under ''Marriage, Separation & Divorce''.

*any property either spouse obtains after the date of separation is his or her own separate property, and not family property;

<blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In <span class="noglossary">order</span> to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."</blockquote>

Under s. 39(1) of the ''Family Law Act'', a parent is a guardian of his or her child both while the parents live together and remain guardians even after the parents separate.  

The ''[[Divorce Act]]'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that:

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling his or her authority.

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an <span class="noglossary">account</span>, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary.

If you separate and your spouse dies, you cannot rely on your spouse's will. Unless the Will says otherwise, any gift or appointment the deceased spouse made to you is revoked at the date of your separation. If you want to make a claim to property owned by your spouse's estate, or for support from your spouse's estate, then you must sue your spouse's estate under the ''[http://canlii.ca/t/8q3k Family Law Act]'' and the ''[http://canlii.ca/t/7vbw Divorce Act]''.   

If you still want your spouse to receive a gift or appointment through your Will, you must update your Will and specify that the gift or appointment should proceed even after your separation.

If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that he or she has a valid power of attorney.  

Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in his or her own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an <span class="noglossary">argument</span> about who owns what or the extent of the family property and family debt.

*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery. The same principle would probably also apply to divorce claims based on cruelty.

You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use his or her adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation.

You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting him- or herself to the children as an alternate parent.

====What if there are a lot of "new" relationships?====

Sometimes a newly separated spouse feels the need to go out and explore his or her options, so to speak, and engages in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent.

If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships.

If you are separated from your married spouse, you are still married and will continued to be married to that person until you get a divorce. If you enter into a new romantic relationship while you are separated, and live with the new person in a "marriage-like relationship" for more than two years or have a child with that person, you will be considered to be in an unmarried spousal relationship; it doesn't matter whether you're divorced or not.