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Separation in Alberta, like in many places, refers to the decision of a married or common-law couple to live apart, indicating the end of their cohabitation while still legally married or in a common-law relationship.  The prerequisites for separation are not legally complex – it generally involves both deciding if a permanent separation or divorce is appropriate in their situation.

Partners agreeing to live apart. There is no formal process or specific conditions required for separation.  Following are some unavoidable reasons to live apart;

  • Marital issues: Conflict, communication problems, or irreconcilable differences can lead to separation.
  • Emotional or physical abuse: Safety concerns may lead someone to leave the relationship.
  • Infidelity: An affair can be a significant reason for separation.
  • Financial problems: Financial stress can strain a relationship, leading to separation.
  • Incompatibility: Couples may realize they have grown apart and no longer share common goals.
  • Substance abuse: issues can lead to couples breaking up.

If they decide to separate, the couple should create a legal agreement that covers custody, property, and other matters.  It’s worth noting that even if they’re living separately, legally married spouses can’t marry someone else.  It’s vital to note that while separation itself is relatively simple, legal and financial considerations can be complex, especially when there are shared assets, debts, or children involved.  Many couples in Alberta choose to create a separation agreement to address these matters and provide clarity during the separation period.

What is a separation agreement?

A separation agreement in Alberta is a legally binding contract between spouses who have chosen to live separately.  This agreement outlines the terms and conditions of their separation, addressing various aspects of their separation, such as:

  • Living Arrangements: It can specify where each spouse will live and other related details.
  • Child Custody and Support: The agreement can cover issues related to the custody and financial support of any children from the marriage.
  • Property Division: It may outline how assets and debts will be divided between the spouses.
  • Spousal Support: The agreement can address financial support from one spouse to the other.

For a separation agreement to be legally valid in Alberta, several requirements should be met:

  • Full Disclosure: Both parties must provide complete and honest financial information.
  • Independent Legal Advice: It’s recommended that each spouse seeks independent legal counsel to understand their rights and obligations.
  • Voluntariness: The agreement should be entered into voluntarily and not under duress.
  • Fairness: The terms of the agreement should be fair and not heavily favour one party to the detriment of the other.
  • Creating a separation agreement can provide clarity and stability during a separation, but it’s essential to consult with a family lawyer to ensure the agreement meets all legal requirements and addresses your specific needs.

How to nullify separation agreement?

If you’ve separated from your spouse and want to cancel the separation agreement, you can do so by submitting a request to the court.  This will cancel any agreements about property or child custody.  When you create this request, it’s crucial to have a lawyer look at it to make sure it’s correct.  This helps avoid any delays.  You need to sign the request in front of a notary before giving it to the court.  Then, at a court hearing, a judge will officially end the separation agreement.

Reason for Opting for separation instead of divorce for various reasons:

  • Separation agreements are often cheaper than divorces because they avoid the need for a court process.  Lawyers can handle the agreement entirely.
  • The same issues, like child custody, spousal support, and property division, can be addressed in a separation agreement.
  • Legal benefits and pensions are still in place because you remain legally married.
  • Some religious beliefs oppose divorce, so separation allows you to live apart while keeping your marital status.
  • It lets couples work on problems like custody and finances while keeping the marriage intact to decide the best course of action.
  • Legal separation can be undone, but divorce is final.

What’s the Difference Between Legal Separation and Divorce?

The terms “divorce” and “separation” are often erroneously employed interchangeably, yet they possess discrete legal definitions.

Fundamentally, divorce signifies the legal termination of a marital union, whereas separation denotes the circumstance in which spouses reside separately while maintaining their legal marital status.  While this differentiation may seem elementary, it is imperative to comprehend these distinctions in order to appreciate the respective legal implications of divorce and separation.  Continue reading to gain insight into these pivotal distinctions and the particular situations that govern the rationale behind a couple’s selection of one alternative over the other.

Divorce serves as the remedy for numerous couples encountering dissolution of their marital union.  Electing to initiate divorce proceedings results in the termination of the legal marital status.  Consequently, this entails the forfeiture of spousal benefits and necessitates the establishment of explicit provisions governing aspects such as child custody, property ownership, spousal support, among others, prior to the conferral of a divorce decree.

Under certain conditions, the court may decree a divorce conditionally, contingent upon the commitment to address these pertinent matters at a subsequent juncture.

The Divorce Procedure in Alberta

When initiating the divorce process, it is imperative to establish the requisite grounds for pursuing such an action.  These grounds encompass living separately and apart from one’s spouse for a minimum of one year, instances of adultery, or cases involving physical or mental cruelty.

Although legal representation is not mandatory for commencing divorce proceedings, it is highly advisable. Legal counsel can proficiently compile the necessary documentation and provide guidance in formulating your assertions.

Upon the submission of the divorce application to the courts, it is mandatory to serve a copy of said application to one’s spouse. Subsequently, the respondent spouse is afforded a 20-day window to respond to the claim (extended to one month if they reside outside of Alberta and two months if they are situated beyond the borders of Canada).

In the event that your spouse concurs with the stipulations of the divorce, a court hearing is unnecessary, and a judge will assess your claim, subsequently bestowing a divorce judgment. Subsequently, the divorce process is deemed concluded after a period of 31 days.

However, if your spouse dissents and challenges the divorce, it necessitates bringing your claim before the court for adjudication.

Reasons for Opting for Divorce:

Several factors influence a couple’s decision to pursue divorce over separation:

  • The desire of one or both spouses to enter into or contemplate future remarriage.
  • The absence of significant advantages (e.g., medical insurance, pensions) associated with remaining in a legal marital union.
  • A spouse’s explicit intent to sever all ties with the other spouse, including disassociating them as their next of kin.
  • A situation where the couple is already living apart and wishes to formalize the dissolution of the marriage.
  • Both spouses seek a complete legal disentanglement from one another.

Can a separation agreement be modified into a divorce settlement agreement?

Indeed, should the determination to pursue divorce manifest during the period of separation, the extant separation agreement can be smoothly transformed into a divorce settlement agreement. This course of action yields financial efficiencies, as it obviates the necessity for both parties to engage in proceedings within the family court system.

How financial matters are considered in divorce and Separation?

The financial implications of choosing between a separation agreement and divorce in Alberta can vary greatly depending on individual circumstances. Here are some general considerations:

Separation Agreement: Can offer financial stability and flexibility during the separation period. It may be financially better for couples who want to maintain certain benefits or share resources while living separately. This option can be cost-effective.

Divorce: Involves the legal end of the marriage, which includes property division, potential spousal support, and changes to financial arrangements. It may be financially better in the long term if significant assets need to be divided.

Do I need a Lawyer for Separation or Divorce?

To determine which is financially better, it’s crucial to consult with a family lawyer who can assess your specific situation and provide guidance tailored to your needs and goals.

Ending your marriage is not easy. You must navigate strong emotions.  You may need to stand up for your rights to protect your financial future.

Kolinsky Law will empower you to make fully informed decisions during this major transition in your life.  Learn how an Edmonton divorce lawyer can defend your best interests. Call (780) 757-6400 or email us today.