Family Law Information
from Experienced Family Law Lawyers:
What is the Difference
between a Separation, a Separation Agreement, a Judicial Separation and a
Declaration of Irreconcilability?
by Olivier Fuldauer
by Olivier Fuldauer
These
similar-sounding things are actually quite different. A separation describes the situation where one
spouse or both spouses (married or common law) decide not to live together as
spouses anymore and take some physical step to create the separation. This can
be moving to another room or another home altogether.
A Judicial Separation in Alberta means a type of court order
that can be obtained under the Matrimonial
Property Act that lets people apply to the court for a division of their
matrimonial property. It’s a fairly narrow concept that gets very limited use
because it is just one of several possible preconditions to making a court
application to divide matrimonial property. The Matrimonial Property Act only applies to married couples.
A Declaration of Irreconcilability is similar type of order
that the court can make under the Family Law Act. This order can apply to a
broader range of people, not just married people. A Declaration of
Irreconcilability states that the parties (married spouses, common law spouses
or adult interdependent partners) have no prospect of reconciling. The point of
this type of order is similar to the Judicial Separation order described in the
above paragraph. It is one of the possible preconditions to making a court
application to divide property under the Family
Law Act (married or not married people) or matrimonial property under the Matrimonial Property Act (married
people).
A Separation Agreement is a type of contract that is the
end-result of a negotiation. It is an agreement that can contain as much or as
little of what separating people want to agree to in writing. The beauty of
Separation Agreements is that they are flexible and legally enforceable,
particularly regarding division of property and spousal support.
To be effective under the Matrimonial Property Act, Separation Agreements must have been made
with legal advice. The legal advice should include advice on how favourable or unfavourable
the Separation Agreement is. An agreement between two people on how they want to
sort out their affairs without this legal advice has little or no legal effect.
For most people a Separation Agreement is an important goal
because it can give finality on division of property and spousal support. And
even though there is less finality on issues related to children, a Separation
Agreement still goes a long way toward setting the roadmap for the way forward
regarding parenting and child support.
Olivier Fuldauer, Barrister and Solicitor
Olivier's bio:http://www.courtneyaarbo.ca/fuldauer.php
Email Olivier: ofuldauer@courtneyaarbo.ca
Family Law Page: http://www.courtneyaarbo.ca/family_law.php
For more information, please contact the law office of
Courtney Aarbo Fuldauer LLP, Barristers & Solicitors at:
Address: 3rd
Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: 403-571-5120
*The information contained in this blog is not legal
advice. It should not be construed as legal advice and should not be relied
upon as such. If you require legal assistance, please contact a lawyer*
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