Separation and Divorce

Am I legally separated? This is a commonly asked family law question. You should be aware of the fact that there is no process in Ontario by which you can obtain a declaration of legal separation. Whether you are characterized as “separated” depends upon the context in which your question is posed. For example, the criteria necessary to be characterized as separated for the purpose of qualifying for support may differ from those necessary to be characterized as separated for income tax purposes.

Upon separation, you must attend to certain family law issues within specified, limited timeframes. Failure to do so may prejudice or extinguish your rights in respect of these issues. For example, you must make a claim for the division of property on marriage breakdown within a specified time from the date of your separation, after which your property claim may be barred by law. It is essential that you contact a family law lawyer promptly to ensure that you are aware of your rights and obligations on separation.

If you are separated but have yet to obtain your divorce, you should take steps to avoid unexpected or unwanted results arising from the automatic operation of law. For example, if you were to pass away before obtaining your divorce, your spouse might retain certain rights to your estate, whether or not he/she is included as a beneficiary under your Will. Your family law lawyer can assist you in taking steps to avoid such unexpected or unwanted consequences.

You may seek a divorce on the following grounds:

• 1. having lived separate and apart for a period of one year
• 2. cruelty
• 3. adultery

Claims for divorce based on cruelty and adultery are relatively rare. You should consult with your family law lawyer as to the option best suited to your needs. A divorce may be obtained on an uncontested basis, by way of an over-the-counter court application. The timing of this application and the speed with which it can be completed vary depending on your circumstances. You should address your individual needs with your family law lawyer.