A. Separation Agreements; Divorce Settlements

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 173-174

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Spouses may separate without seeking any order from the courts. If they do so, they usually regulate the consequences of their separation by entering into a separation agreement dealing with such matters as division of property, support rights, and custody of or access to the children.

Rights and obligations under a separation agreement are not automatically terminated by a subsequent spousal reconciliation. For example, if property has already been transferred by one spouse to the other under the terms of a separation agreement, a subsequent reconciliation does not revest the property in the original owner. When lawyers draft a separation agreement, they usually include a provision that specifically deals with the effect of a subsequent reconciliation.

Separation agreements or minutes of settlement can also be entered into by divorcing spouses, but a divorce judgment must be obtained from the court in order to terminate the marriage and render the parties free to remarry a third party. Separated spouses who do not reconcile may subsequently petition for divorce, but may choose not to do so. Some postpone divorce for a few years; others never get a divorce. Separated spouses who never divorce are wise to put their affairs in order by way of a separation agreement. Separated and divorced spouses must also review their wills, insurance policies, pension plans, and other important documents.

Spousal separation is the conventional prelude to a divorce. Separated spouses who wish to obtain spousal or child support, or custody of or access to their children, may apply to the courts pursuant to provincial or territorial legislation. In the alternative, they may immediately institute divorce proceedings and claim spousal and child support or custody of or access

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to the children as corollary relief in the divorce proceedings. In this event, the relevant legislative provisions will be found in the Divorce Act.¹In most cases, it is immaterial whether a separated spouse or parent seeks support, custody, or access under the federal Divorce Act or under provincial or territorial legislation. The outcome of the dispute will not normally be...