Divorce & Assets

Do I need an officical divorce to separate?

If you were legally married to your ex-spouse and are looking to apply for a divorce, the Divorce Act is the legislation that governs this process. Obtaining an official divorce, however, is not mandatory for all couples who wish to end their relationship. For those that do not want to go through the court process, it is possible for ex-spouses to simply enter into a separation agreement and separate through those means.

For those that want to obtain a formal divorce judgement and a final certificate of this verified by the court, you must prove a “breakdown of the marriage”

Marriage breakdown can be demonstrated by three different circumstances:

1. A one year separation;
2. Adultery has been committed by your spouse; or
3. Cruelty during the marriage.

However, there are also bars to divorce that may prevent a party from obtaining a legal divorce, namely, collusion, connivance, condonation, and a lack of reasonable arrangements.

Although obtaining a divorce may seem straightforward, applications are reviewed on a case by case basis. To ensure that your divorce is obtained without any legal complications, contact NuriLaw if you are contemplating a divorce.

Division of Assets in Divorce

If you are separating from your spouse, you may be entitled or subject to what is known as Equalization of Net Family Property by the court, which is an even division of assets. This process differs province to province. In Ontario, this division is governed by the Family Law Act.

Part 1 of the Family Law Act states that all property that has been acquired by either party during the marriage will be deemed to be the property of both parties, with a few exceptions. The marriage is an economic partnership that gives each spouse an entitlement to an equal share of the profits upon its dissolution.
 

To determine the equalization value, it is first necessary to establish the “Net Family Property” of each spouse, which is a factor of all of the spouse’s assets subtracted by the spouse’s debts and liabilities, as well as the value of property brought into the marriage by the spouse. The resultant figure is known as the Net Family Property. From here, the lower Net Family Property value is deducted from the higher Net Family Property value. One half of this difference is what the spouse with the higher Net Family Property value pays to the other spouse, referred to as the “Equalization Payment”.

The process of Equalization is intricate and complex for many individuals going through separation and/or a marriage breakdown.