Contracts & Agreements

You don’t need the court except to process a divorce after all other issues arising out of the marriage and separation are settled by agreement. The usual practice is to see the progress to divorce as a two-stage matter with the divorce in the second stage. The first stage is the negotiation of a separation agreement that takes care of all the other issues.

Yes. Your status as a separated spouse does not depend on whether or not you signed a separation agreement. You and your spouse are separated when you are living apart from each other, and one or both of you have made a permanent decision not to resume your life together. There is nothing in our law that requires you and your spouse to live together; therefore, there is nothing in the law that requires you to obtain permission from any authority or person to separate.

If you settle all matters arising out of the marriage and separation without going to court, the settlement should be recorded in a separation agreement even though a divorce is contemplated. The agreement must be in the form of a separation agreement to comply with the definition of a “domestic contract,” which has special properties in family law, and to meet the requirements for certain tax advantages that are available. Notwithstanding that it is a separation agreement, when properly drawn it is made to govern the rights and obligations of the parties with respect to each other on separation, divorce and death.

After the separation agreement is signed, the application for divorce is usually made by one or other of the parties although there is provision for the application to be made jointly by both of them. (A joint application is more complicated and of little practical benefit.) The most frequently used ground is marriage breakdown by reason of a separation of at least one year. In this case, the application can be made by either spouse. Sometimes, much less frequently, marriage breakdown by reason of adultery is the ground relied upon. Here, the application is made by the other spouse. (A third possibility, almost never used, is marriage breakdown by reason of cruelty.) The application is a simple form, and where there is a separation agreement the order requested is for a divorce only. The application is filed in the court, and a copy is delivered to the other spouse. Since all issues associated with divorce have been settled in the separation agreement and since there is no dispute about the ground for divorce, the other spouse has no reason to file an answer and lets the time for doing so go by. At this point, the spouse who made the application files the required affidavit and other documents in the court registry asking for an order for divorce. An official at the court checks the documents and if they are complete takes them to a judge who, in due course, dates and signs the divorce order without the need for the parties or their lawyers being present. The court official mails the divorce order to the parties. The divorce takes effect thirty-one days after the date of the divorce order. When this time has expired, an application can be made for a certificate of divorce that is needed for purposes of remarriage.