The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses your rights when you separate from your (married) spouse and no longer live together as husband and wife. If you are thinking of moving out, it is a good idea to consult a lawyer in advance. The lawyer can tell you what your rights and obligations are. This will help you plan your move so that things go as smoothly as possible.
There is no official Court proceeding, special paper or acknowledgment needed to make the separation official, although there can be such documents. You are considered separated when one of you has the intention to live separate and apart from the other.
Although most people separate when one spouse leaves the home, a couple can be living separate and apart while in the same home. This happens when you and your spouse cannot afford to have separate houses. You and your spouse may live in the same house but must live separate lives. You cannot eat together or sleep together. You must be living as roommates and no more. You or your spouse must also have the intention to move out when the circumstances permit.
If your spouse will not leave the matrimonial home, you may apply to the Court of Queen’s Bench for an Exclusive Home Possession Order. Until there is such as Order, both of you have the right to live in the home. The Judge may grant you sole possession of the matrimonial home even if the home is in your spouse’s name. This Order is granted for a certain period of time only and is based on factors such as other available accommodation, needs of children, and financial positions of parties.
The Court can Order your spouse evicted from the home and restrain him or her from entering or coming near it. Be sure to ask for the possession of certain goods and vehicles if required for the children and yourself. If family violence is an issue in your relationship, you may need to consider applying for an Emergency Protection Order. Call your local victims services program for a referral to an organization that can help you.
Under Divorce and Matrimonial Property Laws, it does not matter if one of you leaves the home or who leaves first, a person does not lose their rights to the property or to financial support by leaving. If you require financial support for yourself or your children, the Court will make the Order based on your spouse’s ability to pay. Your right to your fair share of the matrimonial property will be protected. However it may take time for matters to be resolved.
If you are the one to leave your home, you are entitled to take your clothing and personal items. You may take gifts made to you alone, but not things that were gifted to both of you. You can take the things that were exclusively yours before the marriage. If you take the children, you can take whatever is necessary for their care, including dishes, furniture and clothing.
If you are unable to take what you need when you first move out, then you can return later to take what you need. If your spouse has title to the home, you may ask the police to assist you in removing your personal property or the Court can make an Order to allow you to remove your property.
You can also take a reasonable amount of money from a joint account to support the children and yourself. Leaving the other party with no funds is inadvisable.
If you have a car registered in your name, you can take it. Make sure you have continued insurance coverage.
If you live in a rented home or apartment, then you may wish to transfer the lease into the name of the spouse who is staying.
You will be expected to divide the debts acquired during the marriage between you whether in joint names or the name of one of you. At separation it is helpful for you to prepare a list of all property that you jointly own and which you own alone and what the amounts are as of date of separation. This includes RRSP’s and the pensions. The same for all the debts you have separately or jointly with your spouse, or know that your spouse has in their name. If you are leaving the home, take photocopies of financial records with you.
Where you agree with your spouse on how the personal issues (parenting and support) will be resolved and/or how any property will be divided at the end of a marriage, you can have an agreement prepared setting out the terms of settlement between you. The written agreement may be called a Separation Agreement, Separation Contract, Divorce and Property Contract, or Minutes of Settlement. When dividing property, such a contract requires that both parties have independent legal advice from separate lawyers. Each lawyer will sign a certificate of independent legal advice after reviewing the contract with you.
If you have children, parenting arrangements are decided in the best interests of the children. At some point in the process, you and your spouse must attend the Parenting After Separation (PAS) seminar. Your particular circumstances will dictate when. For example, you are required to take the course within 3 months of filing an application or starting a divorce action. A Judge will not grant an Order unless you have taken this course or there is an emergency situation.
The PAS 6-hour course is offered by the Government of Alberta throughout the province at no charge. You will receive valuable information about the legal process and the effects of separation and divorce on children. Phone your local Courthouse for the phone number to register for the course. You may also be eligible to attend Family Mediation Services free of charge. Call the Alberta Government toll-free at 310-0000 and ask for the number of the Family Mediation Services nearest you for details.
If, despite efforts to try and settle matters together, you cannot come to any type of agreement over your family matters, a Judge will decide the issues for you.
A Court application may be made in Provincial Court Family Division under the Family Law Act for a Parenting Order, child and/or spousal support. You may also make an application in the Court of Queen’s Bench under the Family Law Act or under the Divorce Act for a Parenting Order, child and spousal support. For married persons an application for division of property is made under the Matrimonial Property Act. For unmarried persons an action for division of property may be commenced in the Court of Queen’s Bench for unjust enrichment and constructive or resulting trust. You should consult with a lawyer to find out what remedies you can ask for and in which Court you should bring your applications.