Separation and Divorce

Some marriages end suddenly while others seem to fall apart over a long period of time. No matter what the cause, if your marriage fails, you are likely to feel a whole range of intense emotions: sadness, anger, hurt, fear of an uncertain future, loneliness, confusion over the many decisions you must make, and a sense of failure at your lost plans and dreams.

How you choose to handle a separation is very important because of the effect it will have on the rest of your life. For couples with children, it is crucial that the parties along with their respective legal counsel find a way to ensure that the children are harmed as little as possible.  For couples without children the issues of dividing finances and debts as well as reaching a fair division of assets in a mutually acceptable manner is essential

In Canada a “separation” is when a couple decides to live separate and apart from each other because the relationship has broken down. The couple may be married, or they may be unmarried but living together like a married couple in a common-law relationship.  A “divorce” is when a court officially ends a marriage. Only legally married couples can divorce.  Under Canada’s Constitution, the federal, provincial and territorial governments share responsibility for family law.  Although the Divorce Act includes provisions for both a fault based and no fault divorce it is most common that the grounds  of adultery or mental/physical cruelty are not relied upon as it becomes time consuming and expensive and the result is inevitably obtained through the one year rule rather than running a trial over those issues.  Additionally in Canada fault and/or misconduct does not affect support or property issues in a separation.

In Canada ‘Living separate and apart’ does not necessarily require ‘physical separation’ – you can be considered to be ‘living separate and apart’ but share your home for economic reasons, or children, etc. If you are filing for divorce based on separation, you can make the first filing before you have been separated for one year, however the second filing cannot be made until on or after the one year anniversary of ‘living separate and apart’.  For a divorce in Alberta based on separation, you can file your divorce after your separation begins – however, the divorce cannot be finalized until you have been separated for a full year.

Under our Divorce Act, there is also an “ordinarily resident” requirement that must be met prior to commencing a divorce action.  These provisions require that either spouse must have been “ordinarily resident” in the Province of Alberta for at least one year prior to filing the appropriate court documents.  These requirements should be discussed with your lawyer.

In family law the parties need to work towards an all-encompassing agreement which settles of all the issues that relate to their separation.  The agreement that the parties reach can involve the assistance of lawyers, mediators, arbitrators or the court.  Separations do not require that the process is commenced by filing documents with the court.  However if an agreement cannot be reached the parties can go to Court to have their matter heard and a decision rendered.  The Court has the ability to make both temporary (interim) and final orders relating to parties and their separation.

In Alberta married parties upon reaching an agreement can proceed with what is called an uncontested divorce.  An uncontested divorce does not require the parties to attend court and involves documents being filed with the Court, being considered by the Court, and then a Judge rendering a decision without the parties having to be present.  Additionally parties can file for a divorce with what is called a joint statement of claim for divorce.  By filing a joint statement of claim for divorce the parties acknowledge that they are agreeable to the separation and this process can expedite matters on their behalf.

Whenever there are children involved it is the courts duty to ensure that “reasonable arrangements” have been made for the support of the children in accordance with the law before granting a divorce. If a judge is not satisfied that the proper arrangements have been made they will not allow the divorce to proceed until such time as they have been met.  Through this supervision the Courts ensure that the separating parties have properly addressed the rights of their children and the adequate amount of support.

How Long Will it Take?

The length of time from start to finish of a divorce action depends upon how quickly you (or your lawyer) finish the paperwork, how easy it is to locate and serve the documents on your spouse, and how many complications there are in the case.  An uncontested divorce will generally take between 3-5 months.  A contested divorce could take as long as several years.
If you wish to proceed with a divorce please don’t hesitate to give our office a call and we can set up a consult and discuss what the requirements are to move forward.