It is not uncommon for potential clients to tell me at the first consultation that they are looking for assistance in securing a “legal separation”. I have heard this term enough that I have often wondered where it originated. It was also a commonly used term when I was practicing in Ontario. To be clear, there is no such thing as a “legal separation” from the perspective of the courts. When two people decide to separate they can either do nothing to document it (not advised), wait for a year and deal with any issues through the divorce process (a divorce can only take place a year from separation), or immediately try to deal with any, what the courts call, corollary issues.

Corollary issues refers to asset and debt division, the matrimonial home, child/spousal support and custody/access. If you do not have any assets, debts or children then you do not really have to do anything. You are considered separated from the moment you cease to exist as a couple. This can mean that you are still living together but are for all intents and purposes living as roommates not as a couple. In fact you do not even need to get divorced unless you wish to marry again. It is only in the rare example outlined above (no children assets or debts) where the parties do not need to do anything.

When there are assets, debts and children it is best to deal with this as quickly as possible after separation. The best way to sort all of this out is in the form of a separation agreement. In fact if there is property that needs to change hands, such as the matrimonial home, financial institutions require a separation agreement. If the parties cannot agree on the details of their separation then they can perhaps try mediation. If this fails then the only alternative is the court process where a judge will potentially decide all of these important corollary issues. It is of course much better if the parties themselves can come to an agreement. While it is possible for parties to prepare their own separation agreement, there is much that can be missed. It is always advisable to seek legal advice.

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