separation & Divorce Lawyer in Surrey

Although every divorce must be granted by a Supreme Court judge, very few divorces are granted in open court with the parties having to appear before the judge. Most divorces are processed as what is called a “desk order divorce”, meaning that a judge reviews documents submitted by the parties or their lawyers, and decides whether the requirements for a divorce have been met. These are known as uncontested divorces.

One of the documents that can be filed with the court is a separation agreement. A separation agreement is a legal contract between the two separating parties that sets out the rights and responsibilities for each party concerning property division, spousal support, parenting arrangements, child support and other issues resulting from separation and divorce. A separation agreement allows the parties to have more control over their separation and divorce by opening the lines of communication for agreement on issues. Separation agreements are useful tools in uncontested divorces.

Separation agreements are a legally binding document, and it is important for the parties who wish to enter into one to obtain trusted legal advice from a lawyer. Contact Cote & Evans Trial Lawyers today to speak with someone about drafting and entering into a separation agreement. 

A contested divorce takes place when the parties cannot come to an agreement on the issues arising out of their separation and divorce including child support, child custody, spousal support and property division. The parties may agree that they wish to be divorced, however, it is the issues which are contested. A contested divorce requires the intervention of the court. In a contested divorce, you need a trusted advisor and advocate to ensure your case proceeds as smoothly as possible and your interests are confidently protected at each step of the way. Contact Cote & Evans Trial Lawyers today to speak with someone about assisting you with your contested divorce. 

DATE OF SEPARATION 

The law is clear that parties must live separate and apart for one year in order to get a divorce. The law is less clear when it comes to determining the date that the parties actually separated. While it can be straightforward in some cases – such as when one spouse moves out of the family home – it can be more complicated in cases where spouses continue living in the same house but in separate bedrooms.

The challenge in determining the date of separation reflects the fact that each marriage is different, and when the marriage is at an end may depend on circumstances particular to that marriage. Courts have emphasized that it is a fact-driven inquiry, and must take account of all the circumstances. Broadly speaking, courts consider the intention of the parties to end the relationship, and whether their words and actions are consistent with those intentions. This means a court will ask:

1. Did at least one spouse have the intention to separate?
2. Was the intention to separate communicated to the other spouse?
3. Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:

1. 1. changing how they behaved with each other in public; and
   2. changing how they behaved with each other in private.

In answering these questions, courts will often consider communications between the spouses and other people, financial arrangements, living arrangements, the level of intimacy between the spouses or any other factor the court considers relevant.

The date of separation can have important implications for property division (including pension division), and spousal support. If you are unsure of the date of separation, or how it may impact your family law case, it is important to get legal advice about it before signing any agreement.

ANNULMENTS

Annulments and divorces both result in spouses no longer being married, but they do so in a different way and have different requirements and consequences.  When a divorce is granted, it means that the parties’ status as married ends on the date the divorce takes effect. The parties were, from a legal perspective, married from the date of marriage until the date of divorce.  An annulment, on the other hand, means that the marriage was void from the outset and the parties were never legally married.

While it is common to read about short-lived celebrity marriages being annulled in the United States, it gives rise to a very important misconception about annulments – that they depend on the length of the marriage. An annulment does not exist as a sort of “take-back” of an ill-conceived marriage that fell apart about as quickly as it began. Rather, the requirements for an annulment are very specific and do not depend on the time that the parties were married (although an annulment of a long-standing marriage may still impart legal obligations between the spouses for things such as spousal support and property division).

Whenever you attend a wedding in BC, the spouses must say words to the effect that “I solemnly declare that I do not know of any lawful impediment why I, A.B., may not be joined in matrimony to C.D.” If it turns out that there was a “lawful impediment” to the marriage, it may be grounds for an annulment. This is because, in order to obtain an annulment, there must be a legal defect in the marriage. A legal defect goes back to the requirements for a valid marriage, including that neither party is already married to another person, that both parties have legal capacity to marry, and the other requirements of the Marriage Act.

Although people may have specific religious reasons for wanting an annulment as compared to a divorce, annulments are exceedingly rare in British Columbia and difficult to obtain. It requires a successful petition to the court for a declaration that the marriage is null and void. As part of the petition, the party seeking the annulment must produce evidence to satisfy the court of a defect in the lawfulness of the marriage. It does not matter that the spouses agree that an annulment is preferable to a divorce – the evidence must still meet the legal requirements for an annulment.

It is another misconception that an annulment can be granted solely because a marriage was never consummated. In order to get an annulment in that circumstance, the applicant must prove both that the marriage was never consummated, and that consummation is a practical impossibility due to either a physical incapacity or a mental incapacity of one of the parties amounting to an “invincible aversion” to the physical act of consummation. In other words, not only was the marriage not consummated, but it was not capable of being consummated.

If you are contemplating an annulment, it is important to get legal advice regarding the requirements and process. An unsuccessful petition for an annulment could result in the court awarding legal costs of some or all of the proceedings to your spouse. Further, if the grounds for the annulment are that you were married to another person, you could face prosecution for polygamy or for violating the Marriage Act.