Monday, April 11, 2005

FAQ regarding divorce

Here is my FAQ regarding divorce:


What is a "legal separation"?

There is really no such thing as a "legal separation". You are separated from your spouse from the moment you form the intention to end your marriage. There is no written document required to create a separation.
Ordinarily, the spouse wishing to end the marriage needs to communicate this fact to the other spouse to commence the separation. There are cases, however, in which the separation date is established earlier in time, by reviewing the behaviour of the parties. If you are living as roommates for a period of time before one party moves out, for example, it may be that you were actually living "separate and apart" before the date you obtained separate addresses.
If you or your spouse have formed the intention to end your marriage, and this intention has been communicated to the other spouse, you can identify yourself as separated for all purposes, no matter where you are living. There can be tax and other financial implications to doing so, however, and you should review these with a lawyer and maybe an accountant before you identify yourself as separated on any legal document.

Why does it matter when the separation date is?

The separation date is important for determining property issues. Under Ontario law, the separation date is called the "valuation date", and it is the date on which all of your property, and your spouse’s property, is valued for the purposes of figuring out if one spouse owes money to the other to settle the property issues. Some assets change value over time (such as investments and pension plans), and may be worth more or less on different dates. This is one reason it can be very important to establish exactly when the date of separation was.
The separation date is also important for determining the earliest date on which you can divorce.

How long do you have to be separated before you can get a divorce?

There are three ways you can get a divorce under Canadian law:

You can divorce if you are separated for one year or more with no hope of reconciliation;
You can obtain a divorce immediately if your spouse has committed adultery;
You can obtain a divorce immediately if you can establish that your spouse has treated you with mental or physical cruelty.

Most couples divorce on the basis that they have been separated for a year or more, even if one of them has committed adultery. It is less confrontational and embarrassing to proceed on grounds of one-year separation.

I just got served with divorce papers. Do I need to see a lawyer about them if I agree we should divorce?

You should call a lawyer to discuss what is in the divorce application, even if you are sure that all other issues have been settled.

If you have signed a separation agreement with your spouse, chances are that the divorce application is simple, and that you will not need to sign any documents or do anything to complete the divorce. You should still call a lawyer just to make sure you don’t have to appear in court. It is possible your spouse is asking for something in addition to the divorce itself, and you should review the entire document with a lawyer.

If you haven’t signed a separation agreement, however, and there are outstanding issues such as child custody, support or property equalization, you should definitely consult a lawyer as soon as you receive the documents.

How long after my divorce judgment is granted do I have to wait before I can get married again?

There is a thirty-day waiting period after the granting of the divorce judgment before you can obtain your divorce certificate. You need the divorce certificate if you want to remarry.
In exceptional cases, a divorce certificate can be obtained right away, without the thirty-day wait, but the spouse you are divorcing must consent to the granting of the early certificate.

Do I have to go to court to finalize all my issues with my spouse?

You don’t have to go to court if you and your spouse can come to an agreement on the issues of property, child support, custody and visitation and spousal support. You can confirm your agreement in writing in a formal separation agreement. Once you have done that, and your one year of separation is up, your divorce should proceed without opposition by your spouse.

What is a separation agreement anyway?

A separation agreement is a formal, legal document that you and your spouse sign. It usually settles all the issues between you relating to your children, the support of each other, and your property.

You can do one yourself - but it is not usually a good idea to try. A separation agreement is a very tricky document, and there are serious issues that you should have legal advice on before signing. You really should have a lawyer draft the agreement for you, and you should seek legal advice before you sign an agreement drafted by your spouse or his or her lawyer.

I want to go back to my maiden name. How do I do it?

In Ontario, a married woman can elect to be known by her husband’s last name, her own maiden name, or any combination of the two names, at any point in her marriage or separation, or within 90 days following the granting of the divorce. If you want to change your name more than 90 days following the granting of your divorce, you may have to undergo a formal change of name, which costs more than a simple election.

Call the Bureau of Vital Statistics for Ontario for more information. They will send you an application for to complete. Once they have received the application form and the fee, they will confirm your name change. The number for Vital Statistics appears under "Name Change" in the blue pages of your phone book. Alternatively, you can go to the vital statistics website at

  • Vital Statistics

  • If you still have your original birth certificate with your maiden name on it, you can try taking it to the Ministry of Transportation, and asking them to change your driver's licence to match your original birth certificate. With a birth certificate and a driver's licence, you can usually obtain new identification at your bank or any other institution in your maiden name. This plan may not work if your birth certificate is one of the old style, laminated ones. They sometimes not accepted as ID since 9/11. Still, it may be cheaper to apply for a replacement birth certificate than to apply for a complete change of name.

    Mary-Jo Maur
    Barrister & Solicitor
    151 Wellington Street #1
    Kingston ON K7L 3E1
    (613) 530-2665 (voice)
    (613) 530-2241 (fax)

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