1. I am not getting along with my spouse. Should we separate?

Only you can answer that question. A temporary break can help couples deal with problems in a marriage or relationship, or it may be the first step in ending a marriage or relationship that is not working out.

There are counselling services that can help couples talk about their problems and come to a decision, or to come to terms with whatever decision they make.  You can find a marriage counsellor or family therapist by looking in the Yellow Pages or doing an online search under 'Marriage, Family and Individual Counsellors', or Psychologists.

The law does not say that once you are married or once you are in a long-term relationship you must 'stick it out.' The law does provide ways of dealing with issues that arise as a result of separation.

You should get a lawyer's advice before making a decision, if only to fully understand your rights and responsibilities. Mediation or counselling services may help you deal with problems, come to an agreement, or decide what to do.

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2. What is separation?

Separation occurs when you are in a romantic relationship - in this case a marriage - and you and your spouse begin living ‘separate and apart.’ This means that you are no longer going to live together as a married couple.

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3. What is the 'date of separation'?

The date of separation is the date when one or both spouses decide they will no longer live together as spouses. Sometimes this is also the date that one of the spouses moves out, but spouses can be separated and still live together.

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4. Do we both have to agree to be separated?

No. If one spouse leaves the marriage with the intention of ending the marriage, the couple is separated, whether or not the other spouse agrees. You cannot force your spouse to remain in the marriage because you do not want to separate from them.

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5. Does one of us have to move out of the home before we can be separated?

No. Usually separated spouses do live in different homes. Sometimes, though, a separated couple will still live in the same household, but will have separate areas for sleeping, and will not share in daily activities, like meals, together. This arrangement may be necessary because of child-care or money issues. Whether or not you are considered to be ‘separated’ in this situation will depend on all of the facts.

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6. If I move out of the home, do I lose my claim to the home?

When you and your spouse live in a home together while you are married, that home is called the ‘matrimonial home.’ Generally, when married couples separate, and then divorce, there is a general rule of equal sharing. This means that the spouses will split everything 50/50 when they divorce. This includes property, pensions, assets, and debts. This also includes the matrimonial home.

In most circumstances, you still have a claim to the matrimonial home, even if you leave it when you separate from your spouse. You should speak with a lawyer for advice, though, to make sure of your rights and obligations when you separate from your spouse. It's a good idea to talk with a lawyer before you leave, if you can.

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7. Do I have to file any paperwork to be separated?

No. People often think they have to get a ‘legal separation’ or a separation agreement put in place when they separate. This is not true. You do not have to get anything put in writing, and you do not need to notify the court, when you become separated from your spouse.

If you choose, you can apply to the court for a court order on certain issues, like parenting arrangements, child support, or spousal support. You can also get a separation agreement written up by a lawyer. Whether you get either of these things put in place will not affect your ability to apply for divorce when the time comes. However, the divorce may be easier if you already have a separation agreement or court order on the main issues.

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8. What is a separation agreement?

A separation agreement is a written contract between you and your spouse to live apart on certain terms and conditions, which usually includes sections on parenting arrangements, support issues, and the division of property, assets and debts. Separation agreements are usually written by lawyers, and both you and your spouse should get independent legal advice before you sign the agreement to make sure the agreement is right for you. Separation agreements are sometimes called 'Minutes of Settlement.'

You are not required to have a separation agreement put in place when you separate. If you do make a separation agreement, then you may be able to apply to the court to ask for it to be registered in certain situations. When a separation agreement is registered with the court, this makes it a court order, and it may be able to be enforced like a court order.

It is strongly recommended that you see a Nova Scotia family law lawyer to write your separation agreement.

You may see example separation agreements on the Internet, or store-bought kits for writing your own agreement. Be very careful about using templates that you find online, or kits that you buy in a store. There is no organization that checks to make sure that these templates or kits are accurate, or that they are in a format that will be accepted by the courts in Nova Scotia. The only way to know that the agreement you are using is in the right format is to check with a family law lawyer, preferably one that works in Nova Scotia.

Be careful also of hiring an online company to do your separation agreement or divorce forms. These companies are not regulated, and there is no guarantee that they are using the right forms or completing them properly. To make sure that you are using the right forms, always speak with a family law lawyer. For divorce forms, you can also speak with court staff.

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9. Is a separation agreement the same thing as a court order?

No. You have to apply to the court to get a court order, and this order must be signed by a judge - or in some cases, a court officer - to be official.  Separation agreements are private contracts made between the parties. The court does not prepare separation agreements.  Lawyers usually prepare separation agreements.  Sometimes you can make an application to the court to register your signed separation agreement.

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10. How do I register my separation agreement with the court?

You must have at least one original copy of the separation agreement, signed by both parties, witnessed and dated. You will have to file other court documents, and pay a court fee to apply to register the agreement. If child support is involved, one or both parties will have to provide income information to the court, depending on the financial arrangements. You should check with your local court to find out exactly what you need to file to register your agreement.

If you decide to apply to register your separation agreement with the court, you can use this Guide to help you.

When you apply to register your separation agreement, a judge will review the agreement. You do not have to attend court for this – the judge will review the agreement in their office, and will decide whether they will approve the registration. If the judge approves the registration, this means that your separation agreement is now a court order. Once this happens, if you ever want to change the agreement in the future, you will have to apply to the court to do this.

If you register your separation agreement with the court, this means that you can now have any child support or spousal support payments go through the Maintenance Enforcement Program.

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11. Do we have to get a lawyer to draft our separation agreement?

No, but it is strongly recommended that you have a lawyer write your agreement. Family law lawyers will have templates of separation agreements that they use, and these templates will include the sections that you need for your agreement. If you write the agreement yourselves without using lawyers, you may miss a section that you should have included, or you may word something wrong. This may cause problems for you if:

  • you ever want to apply to register your agreement with the court
  • you want to enforce the registered agreement
  • you later discover that you made a mistake. 

When you get a separation agreement put in place, especially if you write your own agreement, both you and your spouse should get independent legal advice before you sign the agreement to make sure the agreement is right for you. Independent legal advice means that each of you would speak to a different lawyer for advice, as one lawyer should not give both of you advice. 

Be very careful about using a draft separation agreement that you find online or purchase from a store.

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12. Can a separation agreement be changed once it is signed?

It is possible to change an agreement, either by both parties agreeing to change it or a court ordering a change.

  • If you have a verbal agreement, you can change it by agreeing to the new terms. However, it is difficult to enforce a verbal agreement since it will only be your word against that of your spouse, if there is disagreement about what the agreement was.
  • If you have a written agreement, it may allow for adjustments to meet changing circumstances, or you and your spouse can agree to changes. The changes should be in writing and witnessed. If the agreement is registered with the court, and you and the other party cannot agree on changes, you can ask the court to settle the matter by filing a variation application.

Keep in mind that once the agreement is signed it is a binding contract. Judges are often hesitant to change agreements. The judge will have to be convinced that:

  • the terms of the agreement are overly harsh
  • you did not have legal advice before you signed it
  • you were forced into signing it.

Whenever parties sign an agreement, each party should keep an original signed version of the agreement.

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13. How long do we have to be separated before I can apply for a divorce?

In most cases, you and your spouse have to be separated for a year before you can apply for divorce. This is required by the Divorce Act, the law that applies to divorces filed anywhere in Canada. 

In some circumstances, you can apply for divorce on the grounds of physical or mental cruelty, or adultery, but these situations become complicated. You will have to provide evidence to the court that these grounds existed. It is strongly recommended that you speak with a lawyer for advice if you are going to use either of these grounds. Using these grounds does not affect what you will be awarded as part of your divorce – the only difference is that you do not have to wait for a year before you can file. Using these grounds does not mean that your divorce will be processed more quickly.

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14. What laws can I use to make an application to the court after I separate from my spouse?

If you have not yet been separated for a year, or do not wish to apply for a divorce, but want to get a court order in place, you can do this by making a court application.

If you want to apply to the court for an order dealing with parenting arrangements, child support, spousal support, or exclusive occupation of your residence, you can do this under the Parenting and Support Act, if both you and your spouse still live in Nova Scotia. These issues are dealt with in the Supreme Court (Family Division) if you live within the Halifax Regional Municipality or Cape Breton. Outside of these areas, these issues are dealt with in the Family Court.

If you want to apply to the court for an order dealing with the division of your property or debts, or exclusive possession of the matrimonial home, you can do this under the Matrimonial Property Act. Usually, though, property issues are dealt with as part of a divorce proceeding.

Issues relating to property, debts, and division of assets are dealt with in the Supreme Court (Family Division) if you live in the Halifax Regional Municipality or Cape Breton. Outside of these areas, these issues are dealt with in the Supreme Court.

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15. If my spouse and I have been separated for a long time, will we be divorced automatically?

No.  If you were married, you have to go through the court’s divorce process to end your marriage. There is no such thing as an ‘automatic divorce’ in Canada, no matter how long you’ve been separated from your spouse.

If you no longer are in contact with your spouse, and do not know where they are, this may make your application for divorce more difficult. This is because your spouse has to be notified of the divorce proceeding. There are court applications you can make for ‘substituted service’, and these are complicated. If this is your situation, you should speak with a lawyer for advice on what to do.

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16. Where can I get more information?

Divorce and Separation (Justice Canada)

Separating or Divorcing Couples (Canadian Bar Association) - includes link to Tax Matters Toolkit

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Matrimonial Property, Pensions & Debts

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