Understanding Separation vs. Divorce: Make the Smart Choice
Steps to Take When Considering Separation or Divorce
Navigating the complexities of separation and divorce can be challenging. This process can be even more daunting when you need clarification about the specific laws and regulations that apply in your jurisdiction. In this blog post, we’ll clarify the differences between separation and divorce within the context of Ontario law.
What is Separation?
Separation is when two individuals living together as a couple decide to live apart. This can occur within a marriage or a common-law relationship. It’s important to note that a legal document or court intervention is unnecessary to establish a separation in Ontario. The act of living separate lives, intending to separate, often suffices.
Legal Separation: What Does it Mean?
While there’s no such thing as “legal separation” in Ontario law, the term is commonly used to refer to situations where a couple has lived separately and has formalized certain aspects of their separation with a separation agreement. A separation agreement is a legally binding document that details arrangements about property division, spousal support, child custody, and other related issues.
The Divorce Process in Ontario
Divorce is a legal dissolution of a marriage, which the court must grant. In Ontario, you can file for divorce if you have been separated from your spouse for at least one year or if you can prove that your spouse committed adultery or treated you with physical or mental cruelty.
The Key Differences Between Separation Vs. Divorce
The difference between separation vs. divorce is that you remain married to your spouse in separation but your marriage is terminated/dissolved in divorce. There are some key differences between these two and they are:
Legal Status: After a divorce, your marriage has been legally ended, and both parties are free to remarry. In contrast, separation does not legally end a marriage. Therefore, even though you and your spouse live separately, you are still legally married.
Resolution of Matters: In a separation, property division, child custody, and spousal support can be negotiated and formalized in a separation agreement. In a divorce, a court can decide these issues, but parties can also negotiate and resolve these matters outside of court.
Religious and Personal Beliefs: Some people may choose separation over divorce due to religious beliefs or personal reasons. In such cases, a comprehensive separation agreement can protect each party’s rights and interests.
Financial Implications: The financial implications of separation and divorce can vary greatly depending on the couple’s circumstances. It’s essential to consult with a legal expert or financial advisor to understand the potential financial consequences of each.
Hot off the press: Statistics Canada new data
In line with Statistics Canada’s dedication to boosting Canadians’ statistical literacy and ensuring public access to this data, these new tables allow users to explore, utilize, and analyze a range of indicators associated with divorces.
Statistics Canada just released a set of fresh data tables:
Steady decline of the divorce rate since 1991
Despite the growth in the population susceptible to divorce, namely married individuals, there has been a decline in the number of divorces over the past three decades. The divorce rate – the number of divorces per 1,000 married individuals – dropped from 12.7 per 1,000 in 1991 to 7.5 per 1,000 in 2019 and descended to 5.6 per 1,000 in 2020.
Chart 1 illustrates a consistent decrease in the divorce rate since 1991.
This overall decline in the divorce rate over the last thirty years can be attributed to two significant societal shifts: the aging of the married population and a decreased propensity for divorce among younger married adults.
The rise in the age of the married population can be attributed to the general aging of the people and the preference of younger Canadian generations for common-law unions over traditional marriage. Additionally, when younger generations choose marriage, they do so at an older age compared to preceding generations. Since the age-specific divorce rates are usually lower amongst older adults, the aging married population has decreased the divorce rate.
Note that the age-specific divorce rates haven’t changed uniformly. Although divorce rates among individuals under 50 remain higher than for older individuals, they have notably dropped, particularly in recent years. Experts often associate this decline, observed in other countries, too, with an increasing selectivity in marriage. This implies that as fewer people choose to marry, those who do are likely to belong to a distinct group characterized by traits promoting enduring marriages.
From the street view on Divorce Rates
From a different perspective, the declining divorce rate over the past three decades could be viewed in relation to broader cultural and societal shifts.
One major factor could be the increased acceptance and prevalence of cohabitation before marriage. More couples are living together before tying the knot, letting them test their compatibility and resolving potential issues before legally committing. This could lead to more stable marriages and a lower divorce rate.
Second, attitudes toward marriage have been evolving. Many now see marriage as less of a social expectation and more of a choice, leading to decreased marriages. In addition, those who get married might be more committed to marriage, thus reducing the likelihood of divorce.
Additionally, the increase in the average age of first marriage could contribute to the divorce rate decline. Older individuals may be better equipped to handle the challenges of marriage due to more life experience, financial stability, and emotional maturity.
Last, there’s also a possibility that the shift towards gender equality and shared household responsibilities have resulted in less marital strife. As more couples share domestic duties and financial obligations, it may alleviate everyday stressors that can lead to divorce.
While these factors may shed light on the decreasing divorce rate, it’s important to note that the topic is complex and can be influenced by many societal and individual features.
Yes, maybe an increase in separations without subsequent divorce could contribute to the decrease in divorce rates. However, this trend could be driven by a variety of reasons.
Some couples might separate but not legally divorce due to the financial implications. Divorce often involves legal fees and may divide assets, which couples might prefer to avoid. Additionally, some individuals may remain married to keep certain benefits, such as health insurance coverage, which could end in divorce.
Emotional and cultural factors can also play a role. For example, some people might oppose divorce for religious or cultural reasons and prefer to live separately. For others, the decision might stem from the desire to avoid the perceived stigma attached to divorce.
Finally, more couples are cohabiting without getting married. When these relationships end, they don’t contribute to divorce statistics, even though they are a form of relationship dissolution.
Apprehension about family court lowers Divorce Rate
While the decrease in divorce rates could partially be attributed to increased separations without formal divorce, the topic is complex. It involves a variety of societal, economic, and personal factors.
The apprehension about the potential costs and stresses associated with family court proceedings could be a significant factor leading couples to choose informal separations rather than formal divorces.
Legal divorce often involves hiring attorneys and paying court fees, which can be expensive. In addition, dividing assets and determining custody arrangements, if children are involved, can be time-consuming and emotionally draining. For some, the potential financial strain and emotional turmoil that comes with a formal divorce process can be deterrents, leading them to prefer informal separations.
Informal separations allow couples some flexibility. They can set their terms with no judge’s approval, which might seem more appealing to some. However, note that informal separations can have complications, especially regarding the legal and financial protections a formal divorce agreement can provide.
So, while the fear of family court and its associated costs may lead to increased informal separations, it’s essential to consider the potential long-term implications and ensure both parties are adequately protected.
Number of separated people in Canada 2000-2020
Find more statistics at Statista
Types of Separation
Some states recognize legal separation and the procedures and duration in these states differ. Let’s look at the three types of separation that are legally known to the world. They are:
Spouses can be having issues in their marriages and not choose to end it yet for good reasons. You can opt for a trial separation if you still want to stay married to each other. This type of separation is a voluntary one and does not require any court filings. However, if the trial separation is to go on for more than two months, spouses can decide to agree on the terms.
This includes the timeframe, handling of the finances, child support and custody, and other important items.
When partners are burned out on each other, constantly “setting each other off,” and acting out in destructive ways, Therapeutic Separation (TS) is recommended.
It is a set period of time during which you continue your work in therapy, remain a couple, but live apart. The “time away” is planned and intended to allow partners to relax and regroup so that they can focus and energise.
These become the Terms of Separation
- Financial management
- Sex and intimacy with each other or others during the time apart**
- Managing “family time” if desired during the Therapeutic Separation
- Concerns about privacy (who they tell, and what is permissible to say)
- Children’s care and visitation, as well as minimising the impact on children
- Setting boundaries for “heavy” discussions and date nights
- Pet care, parental duties, and household chores
It should be noted that in the most successful Therapeutic Separation, the couple remains monogamous. It is recommended no introduction of any dating, as it destabilizes the marriage. The goal Therapeutic Separation is to keep the energy IN the marriage.
Legal separation can mostly be filed directly in a court in some of the states. Starting with a written petition also known as a complaint, you can go to your local court and file for separation. This has the same process as divorce. The judge will either decide for the couples or they both will agree on marriage-related issues like child custody and support, alimony, and property division.
The court will provide the formal settlement agreement form after everything is resolved. If the agreement seems to be okay by the court, they will then issue the orders and declare the couples legally separated.
Is it better to separate or divorce?
Marriage isn’t a bed of roses and every person has their breaking point. Except, on the grounds of infidelity, abuse, and so on, you can decide to work things out by living separately or ending the relationship and going for a divorce. Separation gives your kids some closure but divorce can seem devastating to them and this may affect their emotions.
Why get a legal separation instead of a divorce?
This is a matter of personal preferences. Some spouses’ religious or personal beliefs may forbid them from divorce and so they opt for a legal separation that may allow them to remain married but living separately. Legal separation still allows them some benefits while still married to each other.
They can still find time to resolve their issues while looking forward to what the future holds for them. The legal separation still has a good effect on your kids as you both remain married but a divorce can not be undone.
How does legal separation protect you?
In a legal separation, spouses can move on independently from their marriage without having to go through the divorce process. The legal separation allows spouses to provide health care benefits, social security benefits, tax benefits, and even pension benefits. If you want more information on how the legal separation can impact you, you can contact an experienced lawyer in the field.
The Similarities Between Separation and Divorce
While separation and divorce are two different legal statuses, they share several similarities. These similarities often involve the resolution of shared responsibilities, financial matters, and parenting considerations. In this section, we will discuss the commonalities between separation and divorce, helping you to understand the process and the implications of each.
Resolving Shared Responsibilities
Whether you’re going through a separation or a divorce, shared responsibilities such as child custody, spousal support, and the division of property and debts need to be resolved. Both processes involve making critical decisions about these issues:
Child Arrangements: During separation and divorce, decisions need to be made about the child arrangements, how parenting time will be arranged, and how the children will be financially supported.
Spousal Support: The issue of spousal support, also known as alimony, can arise in separation and divorce situations. The aim is to limit any unfair economic effects of a divorce or separation by providing ongoing income to a non-wage-earning or lower-wage-earning spouse.
Property Division: The division of property, including assets like homes, cars, and savings, as well as liabilities like mortgages and debts, is a common element in separation and divorce. The division can be determined through mutual agreement or, if necessary, a court order.
Legal Agreements
Both separation and divorce often involve creating legal agreements that outline the terms of the separation or divorce. These agreements protect each party’s rights and lay out responsibilities. They usually address issues such as child custody and visitation, division of property, and spousal support.
With a separation this agreement is often called a ‘separation agreement.’ In a divorce, the equivalent document is often referred to as a ‘divorce decree,’ which is the final step in the divorce process.
Emotional Impact
Separation and divorce are both emotionally challenging processes. They represent a significant change in life circumstances and often involve feelings of loss, fear, anger, and uncertainty. In both situations, seeking emotional support from professionals, friends, family, or support groups is essential.
Will legal separation protect me financially?
If you and your spouse are living apart without being legally separated, then you may merely be separated. This means that your period of living apart may not count towards an eventual divorce.
Also, you would still have marital responsibilities towards your spouse during the period of living apart, if you are not legally separated. This can raise serious issues in the event of a divorce, especially if the decision to live apart was not mutual.
Can I date while legally separated?
There’s no straight answer to this question. Dating while legally separated may lead to complications if you choose to get a divorce. Your spouse could raise claims of adultery on that fact.
However, if you and your spouse have agreed that you can see other people while legally separated, this may not be a problem. In either case, it will pay off to seek legal advice before you start seeing other people while legally separated.
Can you just stay separated forever?
Definitely. Even though the law uses the term “separate and apart”, you can live separate and apart under the same roof. Many couples already do this to financially support housing and living costs and their childern.
So long as you do not have sex with your spouse or do any of the things that would make a court determine there was no legal separation, you can live together.
The Divorce Act also allows couples to resume cohabitation for the purposes of reconciliation without interrupting their legal separation. The cohabitation must not span more than 90 days though.
What does legal separation cost?
At its most basic, legal separation does not cost you or your spouse anything. There is no legal process involved in deciding to legally separate. You and your spouse can do this on your own.
However, drafting a legal settlement agreement will cost you some money. Professionals such as lawyers and divorce mediators can help you draft the agreement, although they may charge differently.
How to file for separation?
What about filing for separation in Ontario? There is no need or requirement to file for separation, nor do you for apply for separation meaning there are no court forms to fill out, however you can file your written agreement with the courts if you want, but that is not necessary.
Conclusion
Understanding the differences between separation and divorce in Ontario is crucial to making informed decisions during this difficult time. Each has legal, emotional, and financial implications that must be considered. Always consult a legal professional to understand the best course of action for your circumstances.
Remember, no matter the path you choose, support is available. Reach out to legal professionals, mental health experts, and support groups that can provide guidance and help as you navigate this challenging period
Separation can be a challenging and emotional journey, with many legal and financial complexities to navigate. With my expertise as both a Mediator and a Certified Divorce Financial Analyst (CDFA), I can provide invaluable guidance and support to help you and your spouse settle your separation in a fair and equitable manner. My comprehensive Soft Landing Settlement Method not only the financial aspects of your situation but also the emotional and interpersonal elements, ensuring a smoother and more amicable resolution.
By working together, we can find tailored solutions that respect both parties’ needs and goals, while laying the foundation for a secure and peaceful future. Take the first step towards a more positive separation experience by scheduling a Get Acquainted Call with me today. During our call, we can discuss your specific circumstances and explore how my services can support you during this critical time.
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Ken Maynard CDFA, Acc.FM
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.
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