DIVORCED FROM THE TRUTH

Jaclyn Law busts the myths

If you’re at the point in your marriage where you’re considering ending it once and for all, you may already be making decisions based on misconceptions about how divorce works.

We asked Laura Paris, an associate with Shulman Law Firm in Toronto, and Sarah Dargatz, a partner at Latitude Family Law in Edmonton, to bust common divorce myths in Canada.

In all cases, it’s important to talk to a lawyer in your province or territory to get specifics.

“My spouse cheated, so the court will be on my side.”

“Once upon a time, courts may have considered if one party was at fault, but that hasn’t been the case for quite some time,” says Paris. “There is no sympathy from the courts as to why a relationship broke down. It’s a nofault divorce system, and the fact that a spouse was unfaithful has no bearing on how things are ultimately divided or how childcare responsibilities are arranged.”

This is true across Canada, adds Dargatz, because the Divorce Act is a federal statute. However, laws dealing with property division after a marriage breakdown differ provincially. And if you’re in a common-law relationship, the Divorce Act and matrimonial property laws don’t apply to you.

Each province and territory has its own laws for commonlaw couples.

“My spouse says they won’t sign, so I can’t get divorced.”

We often see this scenario on television shows, but the truth is you don’t need agreement from your spouse to get divorced. You also don’t need to wait endlessly for a response after the divorce papers are served.

If you’ve satisfied the grounds for divorce or lived apart from your spouse for a full year, you can file a court application to resolve a contested divorce, explains Dargatz. “If you follow the proper process, a judge can give you relief and grant you the divorce based on evidence they’re presented with. No one’s going to force you to be in an unhappy marriage.”

“We’re just common-law, so we won’t have to worry about dividing assets and paying spousal support.”

If you’ve lived together for a certain amount of time but you’re not legally married, you’re in a common-law relationship. Exactly how long depends on where you live — in the provinces of Ontario and Alberta, for example, it’s three years, but the amount of time varies across Canada. What many people don’t realize is that when common-law partners call it quits, their assets might be divided and one party might have to pay spousal support.

“Once you have that commonlaw status, the legislation begins to apply to you — in a different manner than for married couples, but it still does apply,” says Paris. “The main thing people should be aware of is the potential for spousal support, (especially if ) there’s any reliance by one spouse on the other. If you share children with your common-law spouse, that usually means a longer duration of support, especially if the person being paid the support is the primary caregiver.”

“I bought the house before I was married, so I get to keep it.”

Not necessarily. Even if only one person’s name is on the property title, and/or the owner purchased the home before the other party moved in, the non-owner is likely entitled to a portion of it. Unless you’ve both signed a domestic or marriage contract (for married couples), a cohabitation agreement (for non-married couples) or another legal agreement that spells out who keeps what if you break up, here’s what happens: for married couples, property is typically divided 50-50; for common-law couples, the courts consider how much each partner contributed.

“People are usually due what they put into the relationship, such as domestic duties: looking after children, cooking and cleaning, general maintenance and upkeep of property, mortgage payments, bill payments — things of that nature that people have invested into a property, and at the end of the day, it’s unfair if they leave that relationship without getting what’s due back to them just because of ownership,” says Paris.

“If I move out of our house, I’ll lose the house in the divorce.”

Many people think they need to keep living in the home — even staying in abusive or high-conflict situations — because they fear they will lose their stake in the home if they leave. “That’s not the case,” says Paris. When considering how to divide property, the courts look at factors such as who’s making payments on it and how much equity it has — not who’s living there.

“If someone is in a relationship they don’t want to be in, the courts won’t force you to live in the house just for property rights,” says Dargatz. “If you need to move out of your house, move out, you won’t lose your rights.”

“If we get divorced, I’ll keep my pension and my ex will keep theirs.”

Nope. Pensions and CPP credits are divided like other assets, but just the portion earned while you and your spouse are married. For common-law couples, it’s less clear — you may have to argue in court. Again, consult a lawyer to find out what’s common in your province or territory.