If you have experienced a marriage breakdown in your marital relationship and you are considering separating from your wife or husband and ultimately getting a divorce, here are some steps to follow:
- Notify your spouse regarding your intention to separate.
- Conduct yourself as separated.
Separation While Continuing to Live Under Same Roof
The court must look at various objective factors to determine if the parties are living apart or not including the following:
- There must be a physical separation… Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
- There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
- The absence of sexual relations is not conclusive but is a factor to be considered;
- Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.
- Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.
- The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns. Greaves v. Greaves, 2004 CanLII 25489 (ON SC),
Separate Physically by moving out of the residence that you are sharing with your spouse.
- You are encouraged to obtain legal advice from a divorce lawyer to understand your rights and obligations before you move out.
- Obtain legal advice from a Divorce Lawyer on Child Custody, Child Access, Child Support, Spousal Support and Division of Assets to equip yourself with information that would hopefully aid you in engaging negotiation process, if this is the route chosen.
- Invite your spouse to discuss about having an amicable divorce. For instance, consider the following:.Discuss issues in general on how you wish to settle issues specific to your situation.. Agree to each retain a family lawyer or a Divorce Lawyer to assist with settlement negotiations.Consider mediation which can work side by side with having a family lawyer or without. Collaborative process is also an option.
- Engage in reasonable settlement negotiations. Professional assistance (Family Lawyers, Mediators etc.) is recommended.
- If a settlement is reached, obtain a Separation Agreement. Your Family Lawyer can draft one for you.
- Filing for a Divorce.If you are requesting the family court for divorce as the only relief if all other issues have been resolved through a Separation Agreement divorce will likely proceed on uncontested basis. The divorce is usually granted after a year of separation if you are relying on separation as a ground for divorce. Other grounds for divorce are cruelty or adultery which are rarely relied on..If you have been unable to settle issues resulting from your marriage breakdown, commence divorce proceedings through the family court process.
Please be forewarned that the divorce process is usually lengthy, expensive and can get very contentious. Jane Mukongolo is a Divorce Lawyer practicing family law in Toronto. For more details on separation and divorce or general family law advice, please call Jane Mukongolo at (416) 929, 6821 or email her at email@example.com.