Separation & Divorce


Questions & Answers

My spouse and I have been living apart for a while now but haven’t done anything else to deal with our situation. Is this a problem?

It is always a good idea to at least talk to a lawyer if at all possible fairly soon after you separate so that you can get legal advice about what steps you should be taking in your particular situation. Some things can be time sensitive. For example, applications to divide property must be made before you divorce, if you are married, or within 24 months of separation if you were not married but had lived together for two years or more. If you have children together and have agreed, or at least not objected, to a parenting plan you should also know that a plan that is in place for any length of time could affect future court decisions about custody, especially interim custody. If you have things like joint bank accounts or credit cards you will also want to ensure that you are not taking on any additional liabilities without even knowing it.

My spouse will not agree to leave the family home. Can I force them to move out or change the locks?

By law you both have the right to live there unless there is an agreement or court order that states otherwise. It might help to know that as far as dividing family property goes, neither spouse will lose any right to their share of the house because they agree to move out. If there are reasons you need to stay in the home, for example because the children live with you, you could make an application for exclusive possession of the family home. Short of getting this kind of court order, unless there are safety concerns, you and your spouse will ultimately have to work this out.

My spouse and I have an agreement that deals with custody, support and dividing the family property. Do we still need to go to court to get a divorce?

A divorce legally ends the marriage and leaves you free to re-marry. If you are not planning on re-marrying you may still want a divorce so that you are no longer considered spouses by law. Laws that give rights to a spouse will generally continue to apply to married couples even when they live apart, unless they have divorced. For example, if you die without a Will your spouse may be entitled to inherit a portion of your estate unless they are now living with someone else.

We want to divorce on the grounds of separation for one year or more. Do we have to wait one year before applying to court for a divorce?

No, you can start a divorce proceeding once you are living apart because it usually takes some time for an application to be dealt with by the court. The divorce will not be granted, however, until a year has passed.

Can I stop my spouse from getting a divorce?

If the divorce application is based on separation for one year or more, the divorce can be finalized with or without your agreement once that year has passed. If the application was based on adultery or cruelty you could deny these acts but the divorce can still be finalized once you have been separated for a year or more.

My spouse cheated on me. How does this affect our divorce?

Adultery is one ground for divorce. If your spouse is willing to admit this you may be able to finalize your divorce before you have been separated for one year. The fact that one spouse cheated on the other will not, however, affect other matters such as support, property division or custody.