A marriage or common-law relationship is considered separated when the relationship has ended and often when one spouse moves out of the home. However, couples do not have to physically live apart to be considered separated in Ontario. Separation could be voluntary such as a break-up, or involuntary, such as the death of one partner. A marriage involves a signing of a marriage license, whereas common law does not require any formal agreement or license. Therefore, a marriage requires a divorce to be formally ended, whereas a common-law separation does not. Ontario considers partners to be in a common-law relationship when they have been living together for three years, or if they have a child together by birth or adoption and are living together in a relationship of some permanence. If you require assistance with your separation or divorce, book a consultation with one of our Southwestern Ontario family law lawyers.
Living Together While Separated
Separated partners may continue to live together and still be considered separated. As long as at least one party desires to be living separately and that party behaves as though they live apart. If separated partners were married, they both have equal rights to live in the home. Unless there is a legal reason that prevents a married couple from doing so, such as a court Order or Agreement. However, these rules do not apply to common-law partners. You have the right to live in the home if you own the home, or you are a tenant of the home. Unless there is a legal reason that prevents you from doing so, such as a separation agreement. There are many reasons why couples may choose to continue living together following a separation, including financial necessity, their children, and more. Separating interests between partners including property distribution and decision-making responsibilities for their shared children can be completed in several ways.
Ways To Separate in Ontario
It is important to note that separation does not equate to a divorce. A marriage requires a formal procedure to be divorced; a common-law relationship does not. Married spouses can be separated without being divorced, but if they wish to remarry, they must first divorce. Additionally, division of property and other important separation matters differ for marriages and common-law relationships. Here are some ways in which couples may separate.
Separation Agreement:
Partners can create what is called a separation agreement. This agreement outlines the terms of separation including but not limited to, division of property and decisions regarding their children. This agreement is formal with the requirement that a witness must observe the signing of the agreement and must sign the agreement themselves. This agreement can be created with or without the consultation of a lawyer. There are several requirements for a separation agreement to be valid, which include but are not limited to, both parties understanding the terms of the agreement, the process being fair, and both parties providing a complete financial picture.
Mediation or Arbitration:
Prior to going to court to settle separation terms, Ontario’s family court requires that you consider agreeing outside of court. This process involves bringing in external parties such as a mediator, lawyer or arbitrator to help those involved make decisions about their separation terms. If a decision is made, a lawyer may assist the involved parties in creating a separation agreement. If agreeing outside of court is not a suitable option or the desire of both parties, the next step is to take the case to family court.
Court:
If a separation agreement cannot be made outside of court, the case will go to court for a judge to determine the terms.
Division of Property
Typically, property acquired during the marriage is split equally between the spouses, whereas property owned before the marriage is subject to an equalization payment for the increase in value that occurred throughout the marriage. This is not the case for common-law partners, who have no automatic property rights to their spouse’s property. Common-law spouses each own the property they had when entering into a common-law relationship. Property acquired during a common-law relationship is also split based on ownership. Alternatively, if the married partners signed a marriage contract or common-law partners signed a cohabitation agreement prior to their breakup, their property can be distributed according to their agreement. Whether you have been married or in a common-law relationship, you may be entitled to or be required to pay child support and/or spousal support.
Contact Cohen Highley’s Family Law Lawyers Today for Legal Advice on Separating From Your Partner
If you require legal assistance from a family law lawyer, contact our law firm to book a consultation with our family law team. Our family law lawyers are proud to represent clients across Southwestern Ontario and have decades of experience handling separation matters. Our law firm has offices in London, Kitchener, Chatham, Stratford and Strathroy, making it easier for residents of Southwestern Ontario to access our services. Contact us today.
*Disclaimer: Please note the content prescribed in this article is only intended to act as a general overview on a legal topic. For specific legal guidance regarding separating from your partner, we recommend you consult with a family lawyer for legal advice, as each situation is unique.