(Part one of a series)
What is family law?
Family law encompasses all issues arising out of either an ongoing romantic relationship or the breakdown of a romantic relationship.
Regarding an ongoing romantic relationship: family law comes into play when the two people in that relationship want to get a written document done up to state what will happen in the event of a separation. This document is known as a marriage agreement (if the parties are married or are about to get married), a cohabitation agreement (if the parties are living together but not married), or also colloquially known as a “prenup” (short for prenuptial agreement).
When it involves a breakdown of a relationship, family law generally deals with four major issues: (a) the child or the children (if there are any); (b) child support; (c) property and debt division; and (d) spousal support. Your goal should be to negotiate and draw up a written agreement (also known as a separation agreement) that deals with all of these issues.
How do I get a legal separation?
There actually is no such thing as a “legal separation” in B.C. Being separated is just another way of saying “breaking up". You can be separated from your ex and still be married to that person. You can still be living under the same roof together but be separated.
Separating from your ex is as simple as telling them you no longer want to be in a relationship with them.
If you are married, getting an order for divorce is also relatively simple, as all you need to do is fill out certain forms and file them at the courthouse.
The much harder part is dealing with all the other issues that arise out of a separation, such as the kids and financial matters, and getting a separation agreement drawn up.
Can I date other people while I am separated from my ex but not yet divorced from them?
Yes, you can.
Does it matter that one of us cheated on the other person during the relationship?
No, it does not.
Canada has a “no fault” divorce system. This means either person can choose to get divorced, regardless of their reasons why, and there is no fault assigned to either person for the marriage ending.
You also are not going to get more money out of the property division just because your ex cheated on you.
If I separate from my partner, do I have to go to court?
No. Unless there are serious safety concerns or property-protection concerns that require court intervention, there are many options available to help you resolve your differences with your ex that do not take place in a courthouse. These options include negotiation, mediation, or arbitration, all of which can be done with or without the assistance of lawyers.
If you are married, you will need to file some paperwork with the courthouse in order to get an order for divorce, but this process does not require you to actually appear in a courtroom in front of a judge unless your situation is highly unusual.
Do I have to hire a lawyer?
No. There is no obligation for you to hire a lawyer. But it is a very good idea to at least consult with a family lawyer so that you fully understand your rights and obligations, especially if there are children and/or assets (and debts) involved. The last thing you want is to enter into a written agreement with your ex only to discover later that you were entitled to far more, or that the agreement needs to be redone because of defects. Family law is complicated, so speaking with a family lawyer helps prepare you to tackle this big turning point in your life.