What happens when you separate?

Once spouses begin to live separately, important legal rights and obligations arise that affect finances, property, and children. Separation is the first step in what can be a complex and sometimes costly sequence of events.

What is “separation”?
A separation is recognized in law as soon as two spouses are living separately and apart under circumstances where there is no reasonable prospect that they will reconcile. This usually means that one spouse has moved out of the family home. Even if the spouses are still in the same residence, in some circumstances, they could be legally separated if they are considered to be living “separate and apart” and have ceased to engage in any conjugal relationship. If possible, you should seek legal advice before separating. The things you do at the time of separation can have a significant impact on who gets custody of the children, possession of the family home, and division of property.

Rights and obligations that arise upon separation
Once a married couple separates, there are five basic rights that arise. First, you can apply to equalize net family property or, on an interim basis, apply to obtain possession of property or to preserve property. Secondly, you can apply for financial support for yourself and your children. Thirdly, you can apply for custody of the children. Fourthly, you can apply for visitation rights. Fifthly, you can apply to live in the family home without your spouse even if you are not the one who owns it. Obtaining an order that would require your spouse to live somewhere else is called “an order for exclusive possession” and is mainly used for spouses who are experiencing abusive situations.

What property can you take?
When a married couple separates, the spouses will need to know what they are each entitled to. Ordinarily, separating couples will agree on the personal property to which each is entitled. In the absence of agreement each spouse is entitled to take anything that he or she owned before the marriage. It is important to remember that ordinarily the Family Law Act of Ontario does not change rights of ownership in respect of either personal property or any other asset. For example, bank accounts owned by each spouse will remain their separate property. Ordinarily the proceeds of a joint bank account will be divided.

Usually when spouses separate they will sell or otherwise dispose of their matrimonial home. Generally speaking, the equity in the home at the time of separation is treated as belonging to both spouses regardless of whose name is on the title. For example, if the house is registered in the name of the husband alone, the equity in the home will still belong to both spouses. This does not require the owning spouse to sell the home and, indeed, any post-separation increase belongs to the owning spouse who also assumes the risk of any decline in value.

There are occasions when one spouse may leave the matrimonial home while the other remains. Under certain circumstances the court can order that the contents of the home remain in the home until the matrimonial affairs have been settled. In the absence of a court order it is not unusual for a parent departing with a child to take whatever possessions are necessary to look after the child. If you are about to separate or have recently separated, a lawyer can help you understand your legal rights and ensure that your interests are protected.