Do you need a separation agreement before you can apply for a divorce?
Here is what you should know and why you may consider not waiting to start the legal process.
Going through the breakdown of a marriage is a difficult process. The decision that your relationship is over is the first step in the process of separation and divorce. You are probably wondering how to go from married to separated to divorced, and whether you need a separation agreement before you can apply for a divorce. Here is what you should know and why you may consider not waiting to start the legal process.
How do you get separated from your spouse?
You become separated when at least one of you wants to end the relationship and you and your spouse start living apart. See our blog here on this topic. There is no such thing as “filing for separation” in British Columbia. You do not have to see a lawyer, sign any paperwork or go to court to get separated.
How do you get divorced from your spouse?
The only way to legally end a marriage is by divorce. That means you must apply for a divorce order from the BC Supreme Court. You can start an action for a divorce any time after you and your spouse separate. The Court will not grant the divorce order until you and your spouse have been living apart for at least one year unless you are applying for a divorce on the grounds of adultery or cruelty. See here for a discussion of the different grounds of divorce in Canada.
Should you wait to deal with issues arising from your separation?
While a divorce order will not be granted until a year of separation has passed, you should not delay in addressing issues that arise from your separation. Important matters such as child support, parenting time, occupancy of the home, support and decision-making for your children, need to be resolved, even if on a temporary basis.
Do you need a separation agreement before you can apply for divorce?
You do not need to have a separation agreement before you can apply for a divorce. However, if you and your spouse have children, the court will not grant a divorce order without evidence that reasonable financial arrangements have been made for the children. The payor parent must be paying child support at the Table amount in accordance with the Child Support Guideline in order to satisfy a Judge that the Divorce Order should be granted unless the Judge is satisfied that other special arrangements have been made to support your children.
Do you need a separation agreement if there are no children of the marriage or property issues?
If you and your spouse do not have children and there are no property or support issues to be addressed, you may not need a separation agreement before you can apply for divorce. It is always a good idea to get independent legal advice from a family lawyer for advice on whether or not a separation agreement is advisable in your particular circumstances. See here for some reasons why a family lawyer is advisable to prepare your Separation Agreement. An experienced family lawyer will ensure that you have not missed any issues and that you are aware of your rights and entitlements before you get started.
How do you deal with issues so you can get a divorce?
Some spouses wish to resolve the outstanding corollary relief issues in a Separation Agreement. Others will agree to issues in a Consent Court Order and yet others will be unable to resolve any issues without the help of the Judge. If you are able to resolve matters in a comprehensive properly drafted separation agreement, this will usually assist in expediting your divorce. See here for more information on obtaining an uncontested divorce in Canada.
If you and your spouse are not able to agree on important issues but want a divorce, you may decide to commence an action in the Supreme Court of British Columbia. This is the only court in BC that has the jurisdiction to grant your divorce.
Get legal advice from an experienced divorce lawyer
If your marriage is ending and you need legal advice, contact Valerie M. Little Family Law Corporation. Ms. Little's practice is exclusively devoted to issues of family law in the Metro Vancouver area. No matter what questions or issues you may have, Valerie is experienced and approachable and able to provide you with impartial and practical legal advice to help you move forward with your life. If you would like to discuss applying for divorce, contact Valerie’s office by phone at 604-526-3333 or complete the contact us form to schedule your personalized consultation. Call today.