Barrister & Solicitor


Marriage or Cohabitation
Marriage Breakdown or Breakdown of a Common Law Spousal or Same-Sex Partner Relationship
Probate Taxes
Rights of Surviving Spouse & Dependants

Family Law: Marriage Breakdown or

Breakdown of a Common Law Spousal or
Same-Sex Partner Relationship

7. Process

Issues arising from a separation are usually resolved in one of two ways or in some combination. Usually, the spouses enter into a separation agreement. This agreement is a written agreement between the spouses, the terms of which are usually negotiated with the assistance of lawyers. Increasingly, separated spouses are turning to mediation as a forum for negotiating the resolution of issues arising from their separation. Such mediation, usually, involves at least some independent legal advice for each of the spouses, and results in a written separation agreement.

Regardless of the process by which spouses pursue their negotiations, the first step will be for the spouses to complete financial disclosure, often on court form financial statements. Once the spouses are satisfied with the disclosure received from each other, they will be in a position to complete the net family property calculation addressed above, so as to work out any equalization payment owing, and the terms of payment. Likewise, once the financial statements are completed, the spouses will be in a position to work out any terms of child support and spousal support. As well, detailed terms as to custody and the matrimonial home are usually included in the separation agreement. Both spouses who are parties to a separation agreement should receive independent legal advice as to the nature and implications of the agreement. A separation agreement must be signed by both of the spouses before witnesses.

The presence of financial disclosure and independent legal advice is critical to the validity of the separation agreement. Increasingly, it is becoming important to the validity of an agreement that there be even-handedness in its terms. The presence of either or both of independent legal advice and financial disclosure is not determinative of the validity of a separation agreement. However, the absence of one or both may increase the likelihood that an agreement will be set aside if later challenged.

Even if a spouse does not argue the validity of the entire separation agreement after having entered into it, he or she may challenge the validity of a provision of spousal support or a waiver of an entitlement to support. The test on such a challenge is whether the provision or waiver results in unconscionable circumstances, although the unconscionability of the process of completing the agreement is likely also to be relevant.

Sometimes, one or both of the spouses commences a court proceeding. This proceeding may be commenced when it becomes apparent that negotiations are unlikely to result in an agreement. Alternatively, the spouses may not want to attempt to negotiate an agreement, or the spouse initiating a proceeding may be of the view that negotiations would be best conducted within the context of legal proceedings. The court processes are continually evolving to increase the education of and dialogue between spouses in the effort to resolve issues prior to trial. For a variety of reasons, very few cases actually proceed to trial.