To separate is to cease living together as a couple. The legal phrase from the Divorce Act, which applies when parties are legally married, is “separate and apart”. Usually, this involves one person leaving the matrimonial home and taking up residence elsewhere. It is possible, however, depending on the particular circumstances, for parties to be separated while continuing to both live in the same home. For instance, where the parties sleep in separate bedrooms and essentially live like roommates rather than spouses. At least one of the parties must believe that the marriage is over. Both components, the physical separation and mental intent must coincide for parties to be separated or to be living separate and apart. Separated persons remain legally married to their spouses until a Divorce Judgment is granted.
Separation Agreement – A binding contract which sets out the terms agreed upon between the parties regarding all legal issues, typically covering the details as to a resolution of the division of property (all assets and debts), parenting (sometimes referred to as custody and access), child support and spousal support. Although a Separation Agreement resolves most, if not all the parties’ legal issues, they are not divorced until a Divorce Judgment is granted.
A Separation Agreement tends to be drafted by the lawyer for one of the parties, while the other party obtains independent legal advice. Although such an agreement may be arrived at quite readily in some cases, more often than not there are legal issues in dispute that need to be resolved.