SEPARATION

Let us try to understand a common and often used legal term – “SEPARATION

  1. What is the meaning of separation under Canadian Family Law?
  2. Effect of Separation?
  3. When does Separation start?
  4. Who can initiate Separation?
  5. What are the legal formalities for a valid separation?
  6. Can parties reconcile after separation? How to discontinue a Separation?
  7. Can Separation affect parties’ Immigration Status in Canada?

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  1. What is the meaning of a spouse and a partner?

In a very simplest terms, any two individuals (can be of same or different sex) legally married and living together as a family are spouses of each other.

On the other hand, if the parties are living together as a family and are not married, they will be called partners.

  1. What is the meaning of separation in Canadian Family Law?

In a layman language, Separation (as the name suggests), means to part ways, to move away, or to division of something.

Same is its meaning in Canadian Family Law which symbolizes division of a family as a one unit to living, cohabiting and functioning as a unit, into unique and distinct parties, in a nutshell two parties united as a family are now individual and distinct parties, individuals.

  1. Effect of Separation?

If you are married, separation does not end your marriage or “married” status. But, you may file your taxes as “separated” individual(s)

  1. When does Separation starts?

Whenever any individual (spouse / partner) who are living together as a family decides to live “separate and apart” from the other spouse / partner. The key term here is “separate and apart”, the intention of parties matters.

The court will look into various facts and circumstances like:

  • Physical separation
  • Withdrawal from the matrimonial obligations
  • Discussion of family problems and communication between them
  • Joint social activities as a family
  • How do they file income tax returns “separated” or “married” (if so)
  1. What are the legal formalities for a valid separation?

As discussed earlier, true intent of the spouses to be separate matters and therefore whoever want to separate from the other must show that intent to prove a valid separation, although, a separation agreement is the best document to prove that the spouses have in fact separated.

  1. Can parties reconcile after separation? How to discontinue a Separation?

A simple answer to that question will be “Yes” the parties can reconcile. Although, number of days matter a lot, if the parties have restarted living together as a family for more than 90 days over a year, the earlier separation date is no longer valid.

  1. Can Separation affect parties’ Immigration Status in Canada?

There are many spouses who sponsored their partner/spouse to immigrate to Canada, if they have not lived together as a family for at least one year in Canada, their marriage may be considered as “marriage of convenience”, besides, even if the couple take a divorce or separate, the obligations under the undertaking given to CIC / IRCC (for the immigration purposes still prevails). So, in a nutshell immigration status may be impacted by their marriage status.

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Note: – MAHESHI LAW  drafts Separation agreements for spouses and partners.