The difference between separation and divorce
A separation is when two people who have been living together as a married or common-law couple decide to live apart. If you’re married, a separation doesn’t end the marriage. A divorce is when a court officially ends a marriage.
Benefits of a Separation Agreement
An agreement is often the best way to resolve a matrimonial separation without the need to spend time and money in court. A Separation Agreement is a formal document that, although not ordered by the court, can be filed at court if one of the parties wishes to enforce entitlements to support payments through the Family Responsibility Office. Separation Agreements are very useful if you and the other side can trust one another to resolve issues amicably. In a Separation Agreement parties can address equalization, division of assets, custody and access, child support and spousal support.
Requirments of a Separation Agreement
Similar to Cohabitation Agreements and Marriage Contracts, Separation Agreements are also defined as Domestic Contracts under section 51 of Ontario’s Family Law Act. Equally, under section 55 of Ontario’s Family Law Act, a Separation Agreement also has to be in writing, signed by the parties and witnessed. But rarely is this enough to make an agreement enforceable.
Under section 56 of Ontario’s Family Law Act, a person can move to set aside a Separation Agreement in court, if:
- a party failed to disclose to the other significant assets, debts or liabilities existing when the Separation Agreement was made;
- a party does not understand the nature or consequences of the Separation Agreement;
- otherwise in accordance with the law of contract.
As such, for a separation agreement to be enforceable it would be beneficial to:
- obtain a lawyer;
- prepare a sworn financial statement;
- disclose all assets and liabilities existing at the time;
- sign a properly drafted agreement as drafted by counsel.
Exercising additional formality and precaution when entering a Separation Agreement may be prudent since it generates good faith and avoids the need for court.
Often, parties end up in litigation because one of the parties simply adopts an unreasonable stance during the separation agreement process. This involves:
- people simply not accepting the law;
- not providing disclosure;
- or surreptitiously taking self-help remedies like moving children or assets while issues are being negotiated.
If there is no hope of reconciliation but you and your partner are amicable enough to resolve issues, a Separation Agreement may be the right solution for your situation.