Can my ex and I skip divorce and just stay separated? - Toronto Star

An amicable split doesn't mean your legal obligations are over.

Separation occurs when a relationship ends, while divorce is the court order that legally ends a marriage.

Lisa Gelman is a Toronto family lawyer and founder of Gelman & Associates. Send your divorce, separation, adoption or other family law questions to: gelman@thestar.ca

Q: My spouse and I were married for only two years. We have no children, similar incomes, and our separation is completely amicable. Neither of us wants support from the other. We have moved on with our lives and living separately is working perfectly fine. We don’t see the point of hiring lawyers and spending thousands of dollars just to get a divorce. Aren’t we practically divorced already?

A: This is one of the most common questions I’ve heard in my more than 30 years as a family lawyer — and I understand the thinking.

If two people have separated amicably, established separate lives, and have no children or support issues, divorce can seem like an unnecessary expense.

However, there is an important legal difference between being separated and being divorced. Separation occurs when a relationship ends, while divorce is the court order that legally ends a marriage.

The distinction matters because separating does not, by itself, settle all of the financial and legal issues between married spouses. You can be happily living in separate homes for years while certain rights and obligations arising from the marriage remain unresolved.

One of the biggest areas where this matters is property. For married spouses in Ontario, property issues are governed by the Family Law Act. The legislation establishes rules concerning equalization of net family property and provides special treatment for the matrimonial home. The calculation is not as simple as dividing everything acquired during the marriage in half, and there are important rules and exceptions. The date of separation can also be significant.

Until those financial matters are properly addressed, you may continue to have financial claims or obligations arising from the marriage. A house, pension, investments, debts or other significant assets can become much more complicated to deal with years after the relationship has ended.

The same goes for the mortgage. If both spouses own the home or are jointly responsible for the mortgage, moving out does not necessarily release either person from their obligations to the lender. If your spouse defaults, the bank can still come after you — regardless of whether you are living together or have long since moved on.

There is also a practical consideration if either of you eventually wants to remarry. As long as you remain married, neither of you can legally marry someone else. A new relationship may be perfectly possible after separation, but remarriage requires the existing marriage to be legally dissolved.

I understand that neither spouse is seeking support, and that may ultimately be the appropriate arrangement. However, a casual conversation between spouses is not the same as formally resolving spousal support in a carefully drafted separation agreement that has been properly prepared and reviewed.

A written separation agreement can record what the parties have agreed to and, where legally appropriate, provide greater certainty about future claims. This is important because circumstances can change over time.

A couple that is completely amicable today may not feel the same way five years from now. One spouse may remarry, receive an inheritance, start a successful business, acquire significant property or experience a major change in income. What seemed straightforward at the time of separation can look very different later.

There are also limitation periods to keep in mind. Ontario’s Family Law Act imposes specific time limits on bringing an equalization claim. Those deadlines can be complicated, and they should not be confused with the rules that apply to spousal support claims, which are different. Missing those deadlines can extinguish rights you did not even know you had.

Death is another area where the law may surprise you. Being separated is not necessarily the same as being divorced when it comes to estate planning. A separation is a good reason to review your will, beneficiary designations, powers of attorney and other arrangements — do not assume everything changed automatically the moment you moved apart.

So, does every separated couple need to immediately hire lawyers and spend thousands of dollars obtaining a divorce? No — but there is a big difference between deciding not to divorce and deciding not to deal with your legal affairs.

For an amicable couple with no children, similar incomes and no dispute about support, a lawyer’s role may be less about negotiating and more about helping both parties understand their rights and properly document what they have agreed to. A separation agreement may provide the certainty that an informal handshake cannot.

You may ultimately decide that staying separated, rather than getting divorced, is the right choice for you. That is a personal decision. But, before you conclude that you are “practically divorced,” make sure you understand what remains legally unresolved. The best time to sort those issues out is usually when you are still getting along. A consultation with a family lawyer can cost far less than untangling a legal mess years down the road.

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Lisa Gelman is a Toronto family lawyer and founder of Gelman & Associates. Send your divorce, separation, adoption or other family law questions to: gelman@thestar.ca