The Divorce Act, R.S.C. 1985, c. 3 regulates the process through which a couple may terminate their legal marriage. Obtaining a divorce is not a mandatory requirement for couples who wish to end their relationship, since they may simply choose to separate and enter into a separation agreement. It is only necessary if one of the individuals would like to re-marry, at which point he or she must get a formal divorce judgment—and a final certificate verifying it—from the court.
Often we use terms like separation and divorce almost interchangeably, but in many jurisdictions these terms can have very different legal significance.
“Separation” simply means living apart. You do not need to file court papers to separate and the law does not require you to live with your spouse. However, separating from your spouse may affect some of your legal rights, such as certain benefit status requirements or taxes. The best way to determine whether separation is the best option for you and your spouse is to talk to a qualified, experienced family law lawyer before separating. If you do separate, you will need to work out arrangements for the care of the children, if you have any, child support/spousal support, and payment of bills.
“Divorce,” of course, is the complete dissolution of the marital state. All assets are divided, support is determined, arrangements are made for the children, and the wife may return to her former name. Once the former spouses become divorced, their estates are once again separated, and they usually may not share health insurance benefits or tax filing statuses.
If you want an Ontario court to officially end your marriage, you can apply for a divorce if you meet these 3 eligibility criteria:
The Divorce Act is the federal law that deals with divorce matters in Canada. If you are not legally married, divorce law does not apply to you.
Section 8(1) of the Divorce Act sets out divorce as the breakdown of a marriage; however there are three ways to establish a marriage break down. One way, which is most common is the no fault ground of separation. This is when spouses have been living separate and apart for over a year and at least one party does not intend to reconcile. There are two fault grounds for divorce: adultery and cruelty which can be used to by-pass the one year separation period.
Choosing between a legal separation and a divorce is often a matter of personal preference. Some people have religious or personal beliefs that do not allow divorce, so a legal separation allows them to remain married while being able to live completely separate lives. A legal separation continues your relationship at least to some extent, so you remain connected to each other. If you get a legal separation, you are still entitled to certain benefits, such as Social Security and pensions that provide payments to surviving spouses.
Legal separation allows a couple to spend time apart and the possibility to contemplate their various options, one of which may be divorce. It is not uncommon for divorce settlements to sometimes result in regrets for both parties. Separation, in contrast to a (permanent) divorce, allows the spouses an ample amount of time to reflect on their possible courses of actions. It is even possible that a legal separation leads to reconciliation. A formal, legal divorce might not be for every couple, vice versa neither may a legal separation. It all depends on the circumstances suitable to each individual partnership in regards to which option is more suitable and practically beneficial for them.
All divorces in Canada must go through a civil court in order to be legally recognized. In Canada, the civil court system is divided between the federal and provincial and territorial governments. Divorce cases are governed by the legislation contained in the federal Divorce Act and can be handled by two types of civil courts: superior courts and unified family courts. Superior courts hear cases related to federal statutes, including divorce cases. Unified family courts are specialist courts that only deal with issues involving family law and may hear matters under both federal and provincial-territorial legislation.
Because each province has its own laws regarding property and debt division, it’s important to check the laws where you live. These determinations can become quite convoluted due to the changing of the couple’s circumstances, so it’s a good idea for each spouse to consult with his or her own attorney for help. A local family law attorney can help you sort through the consequences of a legal separation vs. divorce.
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