Separation and Divorce

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Going through a separation can be upsetting, traumatic, scary and stressful. For couples with children, often the most important issue for both spouses is finding a way to ensure that their children are harmed as little as possible by the fact the relationship has come to an end. For couples without children, sorting out finances and establishing a fair division of assets with a minimum of rancour and unhappiness is key.

Although the Divorce Act provides for both fault-based and no-fault divorces, almost all couples who eventually proceed with a divorce these days use the no-fault "one-year separation" as the basis of establishing a permanent marriage breakdown. Using the grounds of adultery or mental/physical cruelty is almost never done any more – partly because "fault" or "misconduct" plays no role in relation to support or property issues, and partly because arguing over why the marriage ended is a fruitless, time-consuming exercise and a waste of legal fees.

That's not to say that as lawyers we are not concerned about how our clients are affected by the end of a relationship; but we know that an appropriate referral to a skilled counsellor, a support group or a divorce coach may be much more helpful and effective in navigating this major life transition.

The words "legal separation" have no real meaning; sometimes people assume that there is some formal or judicial recognition of the separation that is required by law, but this is not the case. The date of separation is relevant when knowing when the one-year separation has elapsed, but contrary to popular belief the date of separation is not the date when property and debts are crystallized. Unlike other provinces, Alberta's laws on division of matrimonial property (for married people) provide that all matters are "live" until such time as the spouses enter into a formal written agreement with independent legal advice, or until a trial. This means that assets and debts at the date of separation are not "fixed" or final – they can change up or down until settlement or trial. The law may be very different, however, for unmarried spouses.

Under our Divorce Act, either you or your spouse must have been "ordinarily resident" in the province of Alberta for at least one year prior to commencing a divorce action. Check with your lawyer if you have doubts about whether or not this requirement is met. This requirement is a firm one, and can't be waived by the Court.1

Many couples work towards an overall settlement on all issues that are important to them – either with the help of their lawyers, or a mediator, or on their own. They don't necessarily start the negotiation process by filing Court pleadings. However, if they are unable to come to an agreement, the Court will certainly intervene and has the power to deal with certain issues on an interim basis (interim parenting arrangements, interim support, protection from violence, etc.) pending a final agreement or trial.

95% of spouses are able to come to a resolution of all matters between them without having to go to trial. When all matters have been resolved and finalized, their lawyers will proceed with an uncontested divorce. No one has to actually attend court; documents are filed with the Court and considered by a judge without the parties having to be present. If a couple wishes, they can jointly ask the Court for a divorce, without one party having to be the "Plaintiff" and the other having to be the "Defendant".

Where there are children, a judge is required to ensure that "reasonable arrangements" have been made for the support of the children before granting a divorce. If a judge is not satisfied that the agreement between the parties is reasonable, the divorce cannot proceed until such arrangements are in place. This is to ensure that bargains between adults do not prejudice the rights of the child to a fair level of child support.

If you wish to proceed with a divorce, your lawyer will ask you for a number of documents to get started:

1 Recently the Federal Government indicated that it would be making changes to the law in order to allow same-sex couples married in Alberta, but who reside in a jurisdiction that refuses to recognize same-sex marriages, to apply for divorces in Alberta, even where they do not meet the one-year residence requirement.

 
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