Manitoba Justice
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Family Justice
Family Law
Family Law in Manitoba - 2008 Edition
Chapter 4
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- The Difference between Separation and Divorce
- Separation Agreements
- Court Orders on Separation
- Divorce
SEPARATION AND DIVORCE
THE DIFFERENCE BETWEEN SEPARATION AND DIVORCE
Spouses who have separated are still legally married, even if there is a court order of separation. Manitoba law covers separation matters between spouses or between common-law partners, such as parenting arrangements (custody and access), financial support for separated spouses and common-law partners or their children and division of property.
Federal law applies to married spouses who are seeking a divorce and is the same throughout Canada. When a court grants a divorce, the marriage is ended. The Divorce Act sets out how a divorce can be obtained. It also deals with matters related to divorce, such as parenting arrangements and financial support. The Divorce Act provisions on parenting arrangements and support are very similar to the provincial laws in these matters.
A court order or formal separation agreement is not required for spouses to separate - they may simply live separate and apart. However, particularly when there are children or questions of property or financial support, it is wise for separating spouses to have a written separation agreement or court order.
SEPARATION AGREEMENTS
Many couples settle all issues between them by entering into a written separation agreement. Through such an agreement, they can avoid court proceedings, or shorten existing proceedings, except the proceedings needed to obtain the divorce order to end their marriage. However, an agreement cannot change a parent's legal rights respecting custody of their children under The Family Maintenance Act.
A separation agreement will usually deal with matters such as:
- parenting arrangements (custody and access)
- financial support
- division of family property
- the right to live in the family home
- responsibility for family debts
- estate rights on the death of each spouse
Sometimes parties work out the main features of their agreement on their own or with the assistance of a mediator. Lawyers can then provide advice and put their agreement in a more detailed and formal document.
Often couples are unable or unwilling to make an agreement on their own and each party hires a lawyer to bargain or negotiate the terms of an agreement for them. Sometimes, couples want to cut legal costs by having one lawyer act for both of them. This is not possible. A lawyer can only represent one party in a case.
It is important that both parties have independent legal advice, because a separation agreement is a legally binding contract. If a spouse fails to meet the requirements of the agreement, the other spouse may sue in court. If the agreement is a bad bargain for one spouse (Ex: a spouse gets less property than he/she would be entitled under the law) a court is unlikely to interfere and make changes. The court may set aside an agreement if a spouse convinces the court the agreement was made because of fraud or unfair pressure.
A separation agreement can be much more detailed than the usual court order and more tailored or sensitive to the particular family's needs. However, it is not a court order and can be more costly and difficult to enforce. For this reason, in Manitoba, provisions in a separation agreement for the payment of support can be enforced through the Maintenance Enforcement Program in some circumstances. See Chapter 11, for more information on this.
COURT ORDERS ON SEPARATION
When spouses separate and one or both want or need the court's assistance, but don't wish to start divorce proceedings at that time, either spouse may apply for a court order under The Family Maintenance Act. The court can make orders of separation, custody, access, child and spousal support, financial disclosure, sole occupancy of the family home and protection. An order can be granted on a temporary basis (interim order) until the issues are finally settled or on a final basis (final order).
A spouse does not need to prove any fault or misconduct by the other spouse to obtain an order of separation. It does not matter if the spouses have agreed to separate or not, or if one spouse may have been more at fault than the other. If the judge feels that the spouses may be able to reconcile, the judge may postpone the proceedings to allow the spouses to consult a marriage counsellor.
Order Respecting Period of Cohabitation
For common-law partners, the court can make a finding about the period of time they cohabited in a common-law relationship and the dates their cohabitation began and ended.
The act provides for orders of custody (the right to care and control of a child) to one parent alone or to both parents (joint custody). Orders of access set out the kind of contact a parent without custody will have. Chapter 5 explains the law in this area.
Before the court hears a request for custody or access, the parties ordinarily must attend a program called For the Sake of the Children, to get information about the effects of separation or divorce on children. Chapter 5 explains the law in the area of custody and access and provides more information about the For the Sake of the Children program.
Either spouse can ask the court to order the other spouse to pay maintenance to support the spouse or any children in his or her care. Chapter 7 and Chapter 8 explain the law in this area.
Both spouses have the right to request and receive financial information from each other, for example, tax returns and statements of earnings, assets and debts. This right exists both before and after separation. If a spouse fails to provide the information when requested, the other spouse can apply to the court for an order of financial disclosure and for an order requiring the spouse to pay a penalty of up to $5000. The court may also order a spouse's employer to provide financial information about the spouse.
The court can order that one spouse alone will have the right to live in the family home. This kind of order prevents the other spouse from living in the home even if she or he owns it.
Where the court gives a sole occupancy order to one spouse and the other spouse owns all or part of the home, the court can also postpone any rights that the other spouse has to divide, rent, sell or otherwise dispose of the home.
Before September 30, 1999, a spouse could apply to court at any time for orders stating that:
- the other spouse must not molest, annoy or harass him or her, or any child in his or her care (a non-molestation order); and
- the other spouse must not enter the home or workplace of the applicant spouse (a prohibition order).
As of September 30, 1999, spouses can no longer apply for these types of orders, but any existing non-molestation or prohibition orders usually remain in effect. See Chapter 10, Family Violence, for the new types of orders of protection (protection and prevention orders) the court can make under The Domestic Violence and Stalking Act. Under The Family Maintenance Act, the court can also make orders prohibiting or restricting communication and contact between spouses or common-law partners.
If, at any time, the safety of a spouse or common-law partner, or his or her children, is threatened, the police should be contacted at once for assistance. For other protection and help available to an abused spouse or partner, see Chapter 10.
The court usually orders the spouse who has been unsuccessful in the court to pay part or, in rare cases, all of the legal costs of the successful spouse. For example, a spouse who has refused to pay a reasonable amount of support may be ordered to pay costs, or a spouse who has been unco-operative about financial disclosure may have to pay costs.
One area where common-law partners are treated differently from married spouses is divorce. Only married spouses can seek a divorce. However, except for an order of separation, all the court orders on separation described on pages 28 and 29 are also available to common-law partners. While common-law partners cannot divorce, some Manitoba laws provide for the termination of common-law relationships. In the case of a common-law relationship that is registered with the Vital Statistics Agency, it can be terminated by either or both of the partners registering with the Vital Statistics Agency a dissolution of the relationship. This can only be done after the couple has lived separate and apart for at least one year. If only one of the partners registers a dissolution, the other partner must be given notice of it. For common-law partners who never registered their relationship, it can be terminated under some laws by them living separate and apart, usually for at least three years. Some rights and obligations of common-law partners may continue even after the relationship has been terminated, just as some rights and obligations of spouses may continue for a period of time after divorce. It is best to seek advice from a lawyer about this.
DIVORCE
An application for divorce can be made in a province only if one of the spouses has been a resident of the province for the past year or more.
Usually one spouse files the application for divorce, called a petition, although the Divorce Act allows spouses to file the petition together. Some spouses feel a joint petition is more appropriate when they are in agreement on all issues.
Spouses cannot obtain a divorce simply by agreeing to it. The court must be given proof that marriage breakdown has occurred. Marriage breakdown is the sole ground for divorce, but it can be established in one of three ways: separation of one year or more; adultery; or mental or physical cruelty.
Separation of One Year or More
Either or both spouses may apply for a divorce on the ground of marriage breakdown due to a separation of a year or more. The separation does not have to be a joint decision - it does not matter if only one spouse wants the separation as long as a separation actually occurred.
A petition can be filed in court before the full year of separation has passed, as long as the spouses are actually separated at the time the divorce petition is filed. The court cannot grant the divorce until the spouses have been separated a full year, but filing the petition early means it can be heard quickly after the year has elapsed.
The required year of separation is not broken if the parties live together (cohabit) again in an attempt to reconcile, for no more than 90 days in total.
A spouse can seek a divorce at any time if the other spouse has committed adultery, that is, the spouse voluntarily had sexual intercourse with another person. Even if spouses are separated from each other, voluntary sexual intercourse is adultery and can be used by the other spouse to ask for a divorce.
The spouse does not need to be separated to apply. The spouse must prove to the court that the adultery took place.
A spouse can also seek a divorce at any time on the basis that the spouse has been treated with cruelty by the other spouse. Cruelty can include acts of physical violence and causing severe mental anguish. The spouse applying for the divorce must prove that the cruelty took place, that it seriously affected him or her and that it made living together unbearable.
Uncontested divorce applications may be decided on the basis of either written, sworn statements (affidavits) or evidence given by the applicant spouse under oath at a short court hearing. Many spouses prefer to have an uncontested divorce decided on the evidence in affidavits, so they do not have to appear in court.
The Community Legal Education Association has published a guide on how to proceed with an uncontested divorce. The Uncontested Divorce Guide for Manitoba is available at a cost of $25. While it may be helpful for some people, this guide is not a substitute for legal advice. Contact the Community Legal Education Association at:
205 - 414 Graham Avenue
Winnipeg MB R3C 0L8
Telephone: 943-2382
Toll free: 1-800-262-8800
E-mail: info@communitylegal.mb.ca
Website: www.communitylegal.mb.caWhere the spouses do not agree on the divorce, or on issues relating to the divorce (such as custody or support), a formal court hearing with sworn evidence is necessary. If the judge feels the spouses may be able to reconcile, he or she may adjourn the divorce hearing to give them the opportunity to do so.
The court must also be satisfied that reasonable arrangements have been made for the support of the parties' children and if the judge feels that reasonable arrangements have not been made, the judge must postpone granting the divorce until that is done.
If, after considering the evidence, the judge believes that marriage breakdown has been established, the judge grants a preliminary order called a divorce judgment. The parties can't remarry until the divorce becomes final (takes effect). Neither spouse has to apply for their divorce to become final. The divorce automatically becomes final on the 31st day after the divorce judgment is granted, unless the court has ordered that it is final sooner, or one spouse appeals it.
After a divorce becomes final, the former spouses should obtain a certificate of divorce from the court office. This document proves that the divorce has taken place and will need to be produced if either person wishes to marry again.
Other Orders Available on Divorce
A judge dealing with a divorce application can also consider questions of custody, child and spousal support, as well as matters governed by provincial law, such as claims for property and protection orders. Provisions relating to such matters are contained in a separate order. The court can also grant temporary orders (interim orders) of custody and support where such decisions are needed before a trial can take place and the issues resolved on a final basis.
