Untying the Knot: Navigating the Separation and Divorce Process
Updated: Mar 7
Separation and divorce can be an emotional and stressful experience, but understanding the process can help make it less daunting. In this blog post, we will discuss the divorce process , including what a separation agreement entails and the steps involved in getting a divorce.
A separation agreement is a type of a domestic contract which outlines the terms of separation between a couple who have decided to end their relationship. This agreement covers various aspects of separation, including child custody and access, child support, spousal support, and division of property. A separation agreement is not mandatory, but it is recommended as it provides clarity and reduces the likelihood of future disputes.
Separation agreements are a desirable way of settling the spouses' affairs as it allows the parties to take responsibility for their lives by deciding how they - rather than the courts - would settle their affairs. Generally, the courts take a deferential approach to separation agreements so long as the contract is not unconscionable in the substantive law sense.
At common law, a separation agreement becomes void upon reconciliation of the parties, unless the agreement stipulates that it intends to override the common law rule or that the intent of the parties was that terms of the separation agreement would be carried out notwithstanding any subsequent reconciliation. Where the raison d'être of the agreement is separation and parties reconcile, the foundation for the separation agreement dissolves.
What does a Separation Agreement entail?
Two persons who previously cohabited and are living separate and apart may, in the settlement of their affairs, enter into an agreement concerning:
the ownership or division of property, including the matrimonial home;
spousal and child support obligations;
the education and moral training of their children;
decision-making and parenting time concerning their children; and
any other matter in the settlement of their affairs
The Family Law Act gives both spouses an equal right to possession of a matrimonial home, regardless of ownership. But parties may agree or seek an order for exclusive possession of the matrimonial home. Before the event of separation, a couple cannot agree in advance of an actual separation, through a marriage contract, that one of them will move out of the home or that one of them has the unilateral right to sell or encumber the matrimonial home before separation.
Parties to a marriage contract may however address the issue of the ownership of the matrimonial home, such as which party will own the matrimonial home and whether the value of the matrimonial home will be included in their “net family property”.
The Divorce Process:
To file for divorce in Ontario, one of the partners must have resided in Ontario for at least one year immediately preceding the divorce application. The divorce process typically includes the following steps:
Application for Divorce: One partner files an application for divorce with the court and serves a copy of the application to the other spouse.
The parties who are in agreement of the terms of a divorce can file a joint divorce application. This process is usually faster and less expensive than a contested divorce, where spouses are unable to agree on the terms of their separation and require the intervention of a judge to make a final decision.
It is important to note that while a joint divorce application can make the divorce process smoother and more efficient, it is still a complex legal procedure that requires the assistance of a lawyer to ensure that all aspects of the divorce agreement are properly addressed and the rights of both parties are protected.
Answer to Application: The other spouse has 30 days to respond to the application if they wish to contest any of the terms.
Settlement Negotiations: If the couple can reach an agreement, they may enter into a separation agreement at this stage.
Court Proceedings: If an agreement cannot be reached, the case will proceed to court, and a judge will make a decision on the outstanding issues.
Divorce Order: Once all the issues have been resolved, a divorce order will be granted. Having a separation agreement in place ahead of time can expedite the divorce application.
In conclusion, separation and divorce can be a challenging process, but having a clear understanding of the steps involved can help make it easier. It's important to work with a family law lawyer who can support you throughout the process, including the drafting of a separation agreement and navigating the divorce process.
Contact us today to learn more about how we can help you during your separation by downloading the Arra Law Firm app or calling at 905-627-2722.