Legal matters when you separate or divorce
The difference between separation and divorce
How you can divide your property depends on whether you separate or divorce.
A separation is when two people who have been living together as a married or common-law couple decide to live apart. If you’re married, separation doesn’t end the marriage.
A divorce is when a court officially ends a marriage.
Dividing property and debts after a separation or divorce
After your relationship ends, you need to divide the property you share. If you’re married, you may also need to share the debts you owe.
It’s a good idea to act quickly to divide your finances. In some provinces and territories, if you wait too long to make a claim after your separation or divorce, you may lose your right to your share of the property.
Your property may include:
- joint or separate bank accounts
- Registered Retirement Savings Plans (RRSPs)
- Tax-Free Savings Accounts (TFSAs)
- your home and its contents
- Canada Pension Plan (CPP) or Quebec Pension Plan (QPP) credits
- employer-sponsored pensions
- insurance plans
Your debts may include:
- a mortgage
- a personal loan or line of credit
- credit card debt
- a car loan
Federal, provincial and territorial laws determine how you must divide property during separation and divorce. What laws apply to you depends on:
- what province or territory you live in
- whether you’re married or in a common-law relationship
Dividing property in a common-law relationship
Usually, property stays with the person who bought it. If you helped buy and take care of property owned by your former partner, you may have a right to part of it. If your common-law partner doesn’t agree, you may have to go to court.
Dividing property in a marriage
Usually, you divide equally the value of any property you bought during a marriage. You also divide equally any increase in the value of property you brought into the marriage. There are some exceptions.
You and your spouse may agree to a different way of dividing property.
The courts may decide to divide your property unevenly. For example, the spouse with the larger share of family property may owe the other spouse some money.
Dividing property with a cohabitation or prenuptial agreement in place
You may have signed a cohabitation or prenuptial agreement, also called a marriage contract. It covers what you agreed to do with your property if you separate or divorce.
A judge may set aside a cohabitation or prenuptial agreement in certain circumstances.
A separation agreement is a legal contract between a couple. It’s a written record of how a couple has settled issues related to their separation.
You don’t need a separation agreement to separate. Making a separation agreement is usually a faster and less expensive way to settle issues than going to court.
A separation agreement may include details such as:
- living arrangements
- how you’ll divide property
- how you’ll divide debts
- if spousal support will be paid
- custody of children
- access to children
- child support payments
You can prepare a separation agreement on your own, or get a lawyer (or notary in Quebec and British Columbia) to prepare one for you. Each partner should talk to a lawyer before signing the separation agreement. Make sure you understand all the consequences of the agreement.
Who can help you with legal matters
If you and your former partner can’t agree on certain issues, you may need to go to court. The court process takes time and can be very expensive. Consider other options to help you settle disagreements.
In some cases, you may be eligible to receive free help or advice from family law experts.
Mediators and arbitrators
A professional such as a mediator or an arbitrator may be able to help you and your former partner reach an agreement. In most cases, you’ll need to pay fees.
Lawyers and notaries
It’s a good idea for each partner to get advice from a lawyer when you separate or divorce. A lawyer can help you make a separation agreement. The lawyer should specialize in family law.
If you can’t afford a lawyer, you may be eligible for free legal advice on certain issues, such as child support payments.
In British Columbia and Quebec, you can also visit a notary.
Update your will and estate plan
Review your will after you separate or divorce. Make sure your wishes on how to divide your property after your death are up to date.
You may have signed a Power of Attorney document that gave your former partner the authority to manage your money and property. If you did so, you’ll need to cancel it to remove this authority. Speak to a lawyer to learn how to cancel it.
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