Sponsored by the Family Law Team at Boyne Clarke
Q - I am not getting along with my spouse, should we separate?
A - Only you can answer that question. A temporary break can help couples deal with problems in a marriage or relationship or it may be the first step in ending the marriage or relationship that is not working out. There are counselling services that can help couples talk about their problems and come to a decision, or to come to terms with whatever decision you make. You can find a marriage counsellor or family therapist by looking in the Yellow Pages under 'Marriage, Family and Individual Counsellors', or Psychologists.
The law does not say that once you are married or once you are in a long-term relationship you must "stick it out". The law does provide ways of dealing with issues that arise as a result of separation.
You should get a lawyer's advice before making a decision, if only to understand fully your rights and responsibilities. Mediation or counselling services may help you deal with problems, come to an agreement or decide what to do. See the 'Mediation and Collaborative family law' page on this website for information about mediation.
Q - How do I get a 'legal' separation?
A - Once you are no longer living together, you are considered separated, and no further action is required to make it "legal". However, you will need to work out the terms such as child custody and access, child and spousal support, division of property and rights to pensions. Some people choose to write up the terms of their separation in a separation agreement, although the law does not say you have to do this.
Q - Must one of us leave the home before we are considered "separated"?
A - Usually when couples separate, one leaves the family home and lives somewhere else. However, it is possible to live under the same roof and be considered separated for legal purposes.
You need to show that you no longer live together as 'husband and wife'. This means more than that you are no longer having a sexual relationship. You must show that you no longer perform any functions normally expected of a married couple.
It is difficult to prove such a situation. You should get legal advice if you and your spouse are living in the matrimonial (family) home but want to be considered "separated".
For more information on Separation, call the Family Law Team at Boyne Clarke at (902) 469 - 9500.
Q - If I leave the matrimonial home, can I take my things with me?
A - You have a right to take at least your personal belongings and, if the children are going with you, their personal belongings such as clothes and toys. You may also have a right to take some matrimonial property such as household items to enable you to set up your new home. Each case is different and, if possible, you should get legal advice on your situation before you leave the home. Your lawyer will advise you what you can take with you and what your share of the matrimonial property may be.
You must not give away, sell or destroy household items you take with you.
Q - What if we cannot agree on the terms of separation?
A- If you cannot agree likely you will have to ask the courts to settle the matter.
In Halifax Regional Municipality and Cape Breton the Nova Scotia Supreme Court (Family Division) deals with all family matters, including divorce and matters arising from the separation such as custody, support and division of property.
In other areas of the province, the Nova Scotia Supreme Court can deal with these matters or, if you only want to deal with custody, access and support, you can apply to the Family Court. The Family Court cannot deal with division of property or grant a divorce.
Your lawyer can help you make the decision as to which court is most appropriate for you.
Q - Can we get help to reach an agreement on the terms of separation?
A -Your lawyer acts on your behalf and works to ensure that any agreement is in your best interests.
You and your spouse may also wish to reach an agreement through a mediation process. A mediator is an independent person who will work with both spouses to help you reach an agreement you both can live with. Before you sign anything, you should take the agreement to your lawyer to ensure that your rights are protected and the terms are explained to you.
Your lawyer may be able to suggest a qualified mediator, or you can contact Family Mediation Nova Scotia at nsfamilymediation.ca for a list of their members. You can also get contact information for mediators from Family Mediation Canada. Mediators are also listed in the yellow pages of the telephone book under "Marriage, Family, and Individual counsellors".
Another approach is collaborative family law, where lawyers and spouses agree not to go to court, and work together to reach an agreement. You can find out more about collaborative family law, and find a list of lawyers who are trained in the collaborative approach, at www.collaborativefamilylawyers.ca
If you are attending the Supreme Court (Family Division) you will meet with a conciliator who facilitates the exchange of information between spouses and identifies issues. The conciliator may help you and your spouse draft an agreement if you apply to the court.
Q - What sorts of things should we put in the separation agreement?
A - A separation agreement usually describes the terms of your separation. Your lawyer will advise you on what terms will best protect your interests and meet your needs. Following are some things to include in an agreement:
- who will have primary custody of the children or if the custody will be shared;
- the arrangements for access to the children;
- the arrangements for child support;
- whether one spouse will pay maintenance for the other, and if so, how much and for how long;
- will the family home be sold; if not, who will live there;
- who will pay for the mortgage, the repairs, and insurance on the home;
- if the home is sold, how will the profit be divided;
- how will other family property be divided such as pensions, furniture, stereo, car, and savings;
- how will family debts be paid;
- who will pay for insurance policies and who will be the beneficiary;
- how will the agreement be adjusted if circumstances change;
- will the separation agreement form the terms of a divorce agreement.
When you are discussing child support, you should keep in mind the child support guidelines. They provide a guide to the level of child support based on the number of children and the income of the paying spouse. See the page on child support for more information.
The agreement can also include a term that says you and your spouse agree not to harass or interfere with each other.
The separation agreement does not have to be made as soon as you separate. It can be made at any time before a divorce. However, the sooner you can agree on the terms of the separation, the sooner you will be certain of your and your spouse's rights and responsibilities.
Q - Must the agreement be in writing?
A - No. You and your spouse can verbally agree to the terms of your separation. However, for your protection you should put the terms into a written agreement. If it is not in writing, it may be harder to prove what you agreed should a dispute arise at a later date. Do not sign any agreement until you have talked with a lawyer.
For more information on Separation, call the Family Law Team at Boyne Clarke at (902) 469 - 9500.
Q - Can I be forced to sign a separation agreement?
A - No. A separation agreement is only valid if both spouses voluntarily agree to the terms and sign the document. Once the agreement is signed, it is a legally binding contract and can be enforced through the courts. Before signing a separation agreement you and your spouse should have legal advice. You should not use the same lawyer.
Q - Can an agreement be enforced?
A - Yes. However, enforcing an unwritten agreement can be difficult since often there is only your word against your spouse's about what you agreed to.
The usual way of enforcing custody or access in a written agreement is through the court. In Halifax Regional Municipality and Cape Breton you register it in the Supreme Court (Family Division). In other areas of the province, you need to register the agreement with the Family Court. You can register the signed agreement by delivering a copy to the court.
If your agreement is not registered with the Family Court, you can apply to enforce it through the Nova Scotia Supreme Court. Going to the Supreme Court is more
complicated and costly than going to Family Court.
Orders for maintenance made after January 1, 1996, by the Supreme Court, Family Court or Supreme Court (Family Division) are automatically registered with the Maintenance Enforcement Program (MEP). See the page on child support for more information about the MEP, or visit the Nova Scotia Maintenance Enforcement Program website at www.gov.ns.ca/just/mep/
Q - Is it a good idea to have a separation agreement?
A - If you and your spouse can agree to the terms of separation and can set them out in a written agreement, you can save time and money.
- The separation will take less of a toll on your emotions and on those of your children. Going to court to fight over child support, spousal support, custody and access or property can be a stressful drawn-out and unpleasant experience for any family.
- If you have a written separation agreement, your rights and obligations are set out as soon as the agreement is signed. You do not have to wait for court dates and other delays.
- If you later decide to divorce, you can include the terms of the separation agreement in the divorce order.
- If you are making support payments to your spouse under a written agreement, you may be able to claim them on your income tax form. You should talk with a lawyer, an accountant or Canada Revenue Agency about spousal support payments and income tax.
- It can be helpful for establishing dates of your separation for CPP credit splitting. However, administrators of employment pensions may require a court order and not just a separation agreement. You should check with your lawyer or with the pension-plan administrators.
Q - Must a lawyer draw-up the agreement?
A - While you can draw up your own agreement, it is not wise to do so. A separation agreement is an important legal document that will affect your rights and responsibilities. You should get legal advice on those rights and responsibilities from a lawyer, discuss possible terms with your spouse, and then have your lawyer draw up a formal agreement.
You should not sign any document that may affect your rights until you have spoken with a lawyer. Your lawyer can ensure that the agreement covers all the necessary issues.
If you cannot agree on the terms of separation, you will need a lawyer or mediator to help you. You and your spouse should not use the same lawyer.
Q - Can the agreement be changed once it is signed?
A -Yes. It is possible to change an agreement.
- If you have a verbal agreement, you can change it by agreeing to the new terms. However, it is difficult to enforce a verbal agreement since it will only be your word against that of your spouse.
- If you have a written agreement, it may have a provision allowing for it to be adjusted to meet changing circumstances. Or, you and your spouse can agree to changes. The changes should be put in writing and witnessed. If the agreement is registered in the court, and you cannot agree on changes, you can apply to the court to settle the matter.
Keep in mind that once the agreement is signed it is a binding contract. Judges are reluctant to change agreements. The judge will have to be convinced that both spouses agree to the changes or that the terms of the agreement are unduly harsh and you did not have legal advice before you signed it or that you were forced into signing it.
Q - Are there other matters to consider when we separate?
A - Yes, depending on your situation. You should review the terms of your will, life insurance, RRSPs and medical insurance. Your lawyer can advise you on these matters.
This Q & A page on Separation is sponsored by the Family Law Team at Boyne Clarke.
Reviewed: December 2011