Understanding Divorce & Common Law

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Separation vs. Divorce

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There are many misconceptions about what occurs when couples separate.  Among the initial considerations is the separate date.  This is important because the separation date triggers entitlement or obligations concerning equalization of property (assets) that were accumulated during the marriage.  However, contrary to common belief, there is no legal concept of a "legal" separation.  In Ontario, married couples are either legally married or legally divorced by way of a marriage license or divorce certificate.  In order to be divorced the spouses must have been separated for at least one year prior to the court granting a divorce certificate. 

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Uncontested vs. Contested Divorce

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Generally speaking, there are two types of divorce proceedings.  Namely, uncontested and contested divorce proceedings.  An uncontested divorce occurs when neither spouse opposes the divorce application.  However, when separating spouses are not able to agree on the pertinent issues without intervention from a family mediator or among themselves, they are in a contested divorce situation. 

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If spouses choose family mediation they can resolve all issues relating to the dissolution of their marriage in that forum at their own pace and on their own terms.  However, if the parties decide to proceed towards court, the spouse that makes application to the court becomes the "Applicant".  The responding spouse is known to the court as the "Respondent".  The court process can be lengthy and costly if the parties are engaged in a high conflict matter.   

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Common Law Spouses

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A common law union is not considered to be a legal marriage in Ontario.  Therefore, no divorce is required.  However, you may still need a legally binding separation agreement to adequately address any issues of relevance pertaining to property, liabilities, acknowledgement of trust claims, support (spousal/child), etc. that may have materialized during the common law union.     

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