There are two components to ending a marital relationship: Separation and Divorce. People often combine these two components, but they are not one and the same.
A “separation” is when a couple decides to live apart due to a relationship break down. The couple may be married or may not be married but living together like a common-law relationship.
A “divorce” is when a court legally ends a marriage. Only legally married couples can divorce. A common-law relationship does not require a divorce.
Federal and provincial governments are all responsible for Family Law; however, they govern different rules.
A Separation Agreement is a detailed, legally binding document that a couple enters after there is a marriage breakdown. It sets out the legal responsibilities and rights with regards to property, support, and custody. Some of the areas that it will cover include:
In Canada, the provinces and territories are responsible for the laws that set out the rules for dividing property when a couple separates. Property may include:
The Federal Divorce Act governs divorce in Canada and regulates the law with regards to marriage and divorce. The federal child and spousal support guidelines have become that standard application in courts across Canada, but there is some variation and do not themselves form part of the Act. While these guidelines are not the law by the Act, child support calculations are standard across Canada and once income and residential care are determined the tables can be applied. With regards to spousal support (alimony in the US), there is more variance in outcome from province to province, and Judge to Judge. That being said, most lawyers and divorce professionals readily use software that is based on these guidelines.
The Divorce Act sets out rules regarding:
As the Divorce Act is a federal law, it applies across Canada; however, the process of getting a divorce falls under provincial law.
Provincial laws also have rules regarding child support, spousal support, and custody and parenting arrangements for children. However, these laws apply when an unmarried or married couple separates but does not pertain for a legal divorce.
The laws of a province may be like the Divorce Act; however, there could also be significant differences that can impact your rights. Therefore, it is important to be educated on divorce and separation in your province.
Some matters that fall under provincial law in both separation and divorce cases are:
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