April 25, 2019

Do you really want a divorce?

When calling a lawyer, most people tell us they want a divorce. But often, they want something else.

If you are calling a lawyer to talk about divorce, you need to understand that lawyers and the general public do not speak the same language.

To a lawyer, divorce is the very narrow question of un-marrying two people.

To a typical person in the general public, when we ask them what they mean by that, they often start talking about their children, who will have custody and how that works, and about the house, other joint assets and whether spousal support is due or owing. There is real confusion out there about the word “divorce”.

To the basics: you can only divorce if you are legally married.

There is only one law that applies, and that is the Federal Divorce Act. All laws end with the word “Act”, and in Canada it’s a country-wide law. The Divorce Act is the law that lets people legally end a marriage. People generally want a divorce (meaning the detail of being un-married) to psychologically have the final tie cut, such that they are no longer a legally married person, or because they want to marry someone else.

Being separated and dealing with the issues of children, cash flow between the parents and dividing assets are entirely different issues. You need to deal with those issues separately, so when you are in court or speaking to a lawyer for help, it’s good to keep in mind that the entire legal system treats the word “divorce” and “separation” and completely different things. No mistake – they do over-lap, but they are not the same.

In the legal system, it’s best to deal with the issues of children, cash flow and assets before you start talking about divorce. If you file for a divorce before you deal with those issues, you are going to run into a road-block, as the Court cannot approve the divorce until the issues of the children and any child support have been dealt with. This is not the Court being difficult, it’s simply the Court applying the law as set out in the Divorce Act.

We recommend you either reach an agreement with your spouse about all those issues before hand, or if you cannot, then you have to ask the Court to make a decision about all those things in your Divorce process.

When do I need a divorce?

You certainly need one before you can re-marry. You need to get some legal advice before you start a divorce. There are rights that are affected by doing a divorce that could cut off your ability to have an equal division of assets with your spouse as well as support issues. There are other rights too that deal with other assets, so you really need to be careful.

If you are starting your own divorce, you can look at the CLEO site – that’s the Community Legal Education of Ontario website. There are many resources there to guide you through doing a divorce. Our word of warning is to look into the issue before you get that rolling. You can do yourself some harm by not knowing how the law applies to you and you can cause yourself frustration in getting a divorce started (and paying fees) only to be told that you have wasted your time because the issues around the children have not been settled. That is where a Separation Agreement really helps you out.

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