Most people believe that if they’re married and want to end their marriage, divorce is the easy solution. While this is true for the majority of married couples, the solution may not be so straightforward. Separation or annulment are alternatives to divorce.
If you and your spouse are separating, you must have a signed separation agreement. There are numerous reasons for this, and we will discuss your options if your spouse refuses to sign the separation agreement, such as seeking legal advice.
What’s the Difference between Separation and Annulment?
When most people consider how to end a marriage, divorce is the first thing that comes to mind. However, other methods of ending a marriage, such as an annulment or separation, may be more suitable for some couples.
Each method has different requirements and legal ramifications, and couples who decide to divorce should understand which method is best for their specific situation.
Annulment
An annulment is a court order stating that your marriage did not exist or was not valid (your marriage is deemed null and void); this differs from a divorce, which ends a previously valid marriage. When a marriage is annulled, it is declared null and void.
Separation
Because most divorces in Alberta are only granted after a couple has been separated for at least one year, separation is commonly the first step in a divorce.
Separation occurs when 2 people who are married or in an ‘adult interdependent relationship‘ end their relationship and begin living apart from each other. In Canada, there is no such thing as legal separation, but being separated for a year is one of the grounds for divorce.
What Is a Separation Agreement?
A separation agreement is a contract between you and your spouse/partner that’s legally binding after your divorce or separation.
A separation agreement’s goal is to clearly settle all issues of:
- child and/or spousal support
- parenting
- property
- debt division
while facilitating a smooth transition to your future and obtaining any applicable divorce judgment. It’s important to note that in Alberta, separation agreements aren’t legally required. However, these contracts have advantages. Separation agreements:
- Save time and money
- Allow both spouses/partners to collaborate and dissolve their relationship in a respectful manner
- Establish clear boundaries
- Set the course for each party’s individual future
- Facilitate the smooth conclusion of divorce proceedings
You and your former spouse or partner can write an agreement on your own, but it’s recommended that you consult with a lawyer.
What If My Spouse Won’t Sign a Separation Agreement?
It can be difficult for spouses to reach an agreement on how to divide their assets. Years of constructing and gaining wealth together can cause a major split that makes drafting a separation agreement difficult.
A spouse/partner may refuse to sign a separation agreement for a variety of reasons, including:
- An unwillingness to accept the separation
- Fear for the future
- Some people find financial security in attempting to salvage a failed relationship with someone familiar rather than facing an unknown future alone.
If you and your spouse are unable to reach an agreement on certain issues, or if your spouse is unwilling to sign a separation agreement, you should seek expert legal advice.
Your lawyer can assist you in sending a written notice to your spouse in an attempt to engage them in the negotiation and settlement process.
If your spouse refuses to participate in settlement discussions or sign a separation agreement for any reason, your lawyer can advise you on how to negotiate with them. If you cannot come to an agreement, the Court will decide everyone’s fate—and neither of you may be happy with the outcome.
The best course of action can be determined using your family lawyer’s years of experience and in-depth knowledge of the divorce legal system in Alberta. Some of these may include filing a court application if your spouse/partner continues to avoid or reject any settlement discussions.
It often only takes one Court application to convey the gravity of the situation to one’s spouse/partner, urging that party to return to settlement discussions and, eventually, reach a separation agreement.
Get Legal Advice
The separation process and paperwork can be overwhelming and difficult to navigate. Working with a qualified Alberta lawyer will ensure that you have completed all of the necessary paperwork and that you and your family are protected during this transition and when you enter the formal divorce process.
If your spouse refuses to sign a separation agreement, it’s time to hire a divorce lawyer to help you dissolve your marriage, contact the team at KH | Dunkley Law Group to get the process started. View our flat fee pricing.
This memorandum is for informational purposes only, does not constitute legal advice or an opinion, and does not create a solicitor-client relationship. This is an overview and is not intended to be a complete and exhaustive explanation of the concepts covered. This information may become inaccurate based on passage of time or changes in the law. Nothing herein should be relied upon without seeking the advice of a lawyer.
