Mediation Lounge
Separation vs. Divorce
There are many misconceptions about what occurs when couples separate. Among the initial considerations is the separation date. This is important because the separation date triggers entitlements or obligations concerning the equalization of property (assets) accumulated during the marriage. However, contrary to common belief, there is no legal concept of a “legal” separation. In Ontario, married couples are either legally married or legally divorced, by way of a marriage licence or a divorce certificate. In order to be divorced, the spouses must have been separated for at least one year prior to the court granting a divorce certificate.
Uncontested vs. Contested Divorce
Generally speaking, there are two types of divorce proceedings: uncontested and contested. An uncontested divorce occurs when neither spouse opposes the divorce application. However, when separating spouses are not able to agree on the pertinent issues, either among themselves or with the help of a family mediator, they are in a contested divorce situation.
If spouses choose family mediation, they can resolve all issues relating to the dissolution of their marriage in that forum, at their own pace and on their own terms. However, if the parties decide to proceed to court, the spouse who applies to the court becomes the “Applicant”, and the responding spouse is known to the court as the “Respondent”. The court process can be lengthy and costly if the parties are engaged in a high-conflict matter.
Common Law Spouses
A common law union is not considered to be a legal marriage in Ontario, so no divorce is required. However, you may still need a legally binding separation agreement to adequately address any relevant issues pertaining to property, liabilities, acknowledgement of trust claims, support (spousal and child) and so on that may have arisen during the common law union.