Questions in respect of separation and divorce may occur to individuals who are contemplating separation and divorce or those who are in the process of separation and or divorce. This article will discuss some questions in respect of separation and divorce as well as the elements of separation and divorce in Canada.

 

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What is a separation agreement and is it necessary to have one? A separation agreement is a contract that is drafted between two spouses or common law partners in order to resolve issues that need addressing during the period of separation. As a separation agreement is a contract that is governed by the law of contracts and as a result where one party fails to adhere to the requirements of the agreement he or she is in breach of contract. That being said, a court may find a separation agreement to be unfair or unreasonable and thus render the contract null and void. A separation agreement looks at resolving issues in respect of divorce which may include the following:

  • Custody and access, if applicable
  • Division of property or equalization
  • Spousal support
  • Child support and maintenance
  • Debts


A separation agreement replaces the need to go to court in order to resolve these issues and if you and your spouse or partner are agreeable then it is the best option that you can take. It must be noted that going to court and drafting a separation agreement is extremely costly even if you resort to alternative dispute resolutions such as arbitration or mediation.

However, it must be noted that a separation agreement is not necessary. That being said by drafting and your own separation agreement it greatly reduces the costs associated with the divorce and further allows both parties to create an agreement that is flexible and personal. The agreement is flexible in that where amendments need to be made the parties can quickly and easily do this and enforce the agreement once it is signed. As compared to resolving amendments in court this will require bringing an application to court for a variation which will mean costs and delays as well as the consumption of time. The agreement is personal in that the parties involved are able to discuss the issues and come up with a suitable conclusion instead of where a judge makes the decisions in an objective way and is also unaffected by any decisions made.

Do I have to go to court to get a divorce, or it can be settled out of court?

The short answer is yes, all divorces require the submission of an application to the court so as to attain a divorce judgement. Without submitting an application and a divorce judgement being made in court, the divorce itself is not valid.

What is an annulment?

An annulment is a declaration by the court that two spouses were never legally married and allows some spouses to end a marriage without divorce. An annulment results from a defect that existed during the marriage ceremony and prevents a marriage from coming into existence.

Seek out the best divorce lawyer in Toronto for legal advice.