Legal separations are very misunderstood in Alberta. The reason they are misunderstood is that legal separations do not actually exist. There is no such proper concept in Alberta law as a legal separation. So the questions becomes: “what are people actually talking about when they refer to a legal separations.” The lawyers at Kahane Law Office in Calgary can help sort this out.
Legal Separations as a Separation Agreement
A separation agreement is an agreement that sets out the rights and obligations of parties to a relationship that has fallen apart. When people separate, they often want to set out the terms of the end of the relationship with respect to finances, debts, children, property, etc. There are certain requirements under the law to make a separation agreement binding. While the agreement can be enforced, it is not a legal separation. To learn more about separation agreements, please see our webpage on separation agreements, why separation agreements are important, and our video on separation agreements. You may have a binding separation agreement but this is different form being legally separated.
Living Separate and Apart for One Year
In order to get divorced in Alberta, you must be be able to show a breakdown of the marriage. One of the ways of showing a breakdown of the marriage is to show that the married couple has been living separate and apart for one year. This does not necessarily mean that they live in different homes, but usually does. While this indication of a breakdown of a marriage is recognized by Alberta legislation and the courts, it is not a legal separation. We have more information on our video on the basics on separation here.
Legal Separations as they Relate to Dower Rights
When people are selling or refinancing a home, they are asked their marital status if that are the only one on title. Many people respond that they are single, when in fact they are married. When asked to clarify if they are single, as in never married or properly divorced, they will state that they are legal separated or that they have a legal separation. If a person is separated but still legally married (common law does not count for dower rights), dower rights will still apply. We have more information on dower rights here.
Legal Separation as Divorce
Generally speaking, when people are divorced, they do not refer to themselves as being legally separated or having a legal separation. Occasionally client will. A divorced person has a specific standing in law. They should refer to themselves as being not married or divorced not legally separated.
Where Does This Leave You?
If you are separated or plan to separate, it is important to get legal advice. Talk to a lawyer that you trust. Even if you do not hire a lawyer, it is a good idea to pay for a consultation, usually only an hour or so, to get a proper legal opinion on your rights and obligations. a “Free initial consultation” will give you a chance to tell your story and help you and the lawyer decide if you will work with each other, but this does to replace getting a legal opinion. Sometimes people use a term to mean something, however, it is important to know that they term that they use may not describe their situation accuracy. There may be serious implications to that person with respect to their legal standing and obligations. Remember, unless there is something that is legally binding or effective, a “legal separation” does not assist in releasing you from obligations.
Getting Further Help About Being Legally Separated
If you have any questions about your legal status with respect to relationships or what your rights or obligations are, call our family law lawyers in Calgary. You can reach us toll-free at 1-877-225-8817, or 403-225-8810 locally.
email us directly here.