| Sep 24, 2009

Back to HomeLegalese - September 24, 2009 The “Legal” Separation

By Susan Irwin, Executive Director / Lawyer, Rural Legal Services

One of the most common topics raised by callers or visitors to our clinic involves various aspects of the “legal” separation.

The law does not require people who are married, or who are common law spouses, to continue to live together, so in that sense there is really no such thing as an illegal separation. But the term “legal” separation is the term used by most people, other than lawyers, who want to separate from their spouse and who want some sort of agreement that deals with, among other things:

custody and/or visitation rights if there are any childrenthe division of property and the allocation of responsibility for repayment of debtssupport for children and/or for one of the spousesthe continuation of medical or other benefits under a spouse’s employer’s plan, and the division of pension benefits.

In other words, people want an agreement that documents their separation. To a lawyer, this is known as a type of “domestic contract”, and if done properly, such an agreement is binding on both parties. Each agreement is different, as different as the relationship and the parties involved, and it is essential that both parties are aware of the legal consequences that will arise from entering into a domestic contract.

Although a separation agreement can be oral, such an informal arrangement is not recommended. Oral agreements are difficult to enforce and resorting to the Courts could result in a disposition that may not please either party. And there is always the question of expense – proving an oral agreement is always time consuming and expensive if one side simply denies its existence or develops a radically differing view of its terms.

For most couples, the best and most economical way to approach separation is to seek the assistance of a lawyer who can advise you as to your rights and obligations under the law upon the breakdown of your relationship. If you cannot afford a lawyer, then there are some resources available to you – simply call our office for more information. Each party should have their own lawyer, and they will attempt to put your agreement in proper form.

If you cannot agree on the terms, then the lawyers may recommend mediation, where a person called a mediator will work with you to reach an agreement. A mediator cannot give you legal advice, or make decisions for you. Their role is to listen and to help you reach consensus.

Some couples decide to write their own separation agreement. If properly executed, those agreements can be enforced by a Court, so it is best to seek legal advice before signing a document, especially if prepared by the other spouse without consultation. A Judge will be very reluctant to interfere with the terms of a separation agreement worked out by the parties, unless it can be shown that there was fraud or intimidation or other special circumstances that warrant such interference. Be warned, though, the Court will not re-write an agreement freely entered into just because one spouse later decided that it was a bad deal.

And then there are some couples who simply cannot come to an agreement. In those cases an application can be made to the Court for a Judge to settle the issues by way of a Court Order.

The issues upon separation can be very complicated, and people should seek legal advice before making decisions that could impact on their lives and financial well-being for many years. Although the Clinic does not take matters to Family Court, we will work with you to help you understand your legal rights and obligations and talk to you about how you can get additional help.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

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