Filing For Legal Separation: New Brunswick

To file for legal separation in New Brunswick, you must be no longer living together with your spouse, without the need for further legal action. While it is not necessary to live in different homes, each person must lead an independent life, refraining from functions normally associated with married couples, such as eating and socialising together. This includes maintaining separate bedrooms and refraining from sexual relations. The date when a couple starts living apart is their date of separation, which is crucial if they plan to divorce later, as they must be separated for at least a year before initiating divorce proceedings. It is important to note that a couple is not legally divorced until they go through the official divorce process.

Legal separation requirements

In New Brunswick, a couple is considered legally separated as soon as they are no longer living together. No further action is required to make it "legal". This means that a court order is not necessary to be "legally" separated. However, a separation agreement can be made to outline the rights and obligations of each spouse during the separation. This agreement can include provisions for support, parenting arrangements, parenting time, and property division. It is not a requirement to have a separation agreement, but it can help to resolve issues that may arise during the separation.

To be considered "separated", it is not necessary for couples to live in different homes. They can live in the same house or apartment but lead separate lives. This includes having separate bedrooms, not performing functions normally expected of a married couple, and not having sexual relations. The date when the couple commenced living separate and apart is their "date of separation", which is important to know if they plan on later divorcing.

If a couple wishes to divorce, they must be separated for at least one full year before they are able to do so. The only ground for divorce in Canada is the breakdown of the marriage, which can be proven by separation, adultery, or cruelty. The most common ground, especially for an uncontested divorce, is "separation", which means living "separate and apart" for at least one year immediately before the court decision.

The cost of filing for divorce in New Brunswick is $110. Additional costs may include hiring a lawyer, paying for certified copies of birth and marriage certificates, and purchasing pre-printed forms. It is recommended to seek legal advice when creating a separation agreement to ensure it is binding and enforceable through the courts.

Separation agreements

A separation agreement is a legally binding contract between two spouses at the time of their separation. This contract outlines each party's rights and responsibilities concerning custody and access, property, debts, and child or spousal support. While it is not mandatory to have a separation agreement, it is highly recommended as it can be challenging to prove a couple's oral agreements in court.

When creating a separation agreement, both spouses must be completely transparent about their financial situation. This includes disclosing their physical assets and liabilities in detail. The agreement must be in writing, signed by each party in the presence of a witness, and entered into voluntarily. Each party must understand the terms of the agreement, and it is advisable for each party to seek independent legal advice.

If you are concerned that your spouse may not fulfil their obligations under the separation agreement, you can file it with the Family Responsibility Office. This government-funded office can help enforce the agreement under the Family Responsibility and Support Arrears Enforcement Act at no cost to you. Alternatively, you can file the agreement with the court under the Family Law Act.

It is important to note that a separation agreement is not the same as a divorce. A divorce legally ends a marriage, and in Canada, there is no time limit for separation. You can remain separated from your spouse indefinitely without ever filing for divorce. However, if you use separation as grounds for divorce, you must be separated for at least one year before initiating divorce proceedings.

While it is not a requirement, it is generally advisable to have a lawyer draft the separation agreement. This ensures that the agreement is legally sound and enforceable. If you choose to create your own separation agreement, it is crucial to review all the provincial requirements to understand how to draft a binding and enforceable agreement.

Divorce costs

The cost of filing for divorce in New Brunswick is $110. If you are doing your own uncontested divorce, the cost is between $260 and $440. This includes the $110 fee for filing the Divorce Petition and the Clearance Certificate, and the $7 fee for the Certificate of Divorce. If you are receiving legal aid, there is no filing fee for a divorce application.

Other costs to consider when filing for divorce include hiring a lawyer for specific questions or tasks, paying for certified copies of birth and marriage certificates, purchasing pre-printed forms, photocopying documents, hiring someone to serve documents, and fees for a Commissioner of Oaths.

If you have a contested divorce where you and your ex-partner cannot agree on the terms, you will likely need to hire a lawyer and the cost of litigation will be significantly higher. It is not uncommon for a complex divorce process to cost more than $20,000.

It is important to note that a divorce is different from a legal separation. A separation agreement is a contract between two spouses at the time of their separation, outlining each party's rights and obligations with respect to custody, access, property, debts, and support. While it is not required to have a separation agreement to be legally separated, it can help resolve issues arising from the separation.

Child custody

When a marriage or relationship breaks down, parents must decide on the care arrangements for their children. Each parent, whether married or not, has an equal right to decision-making responsibility for their children. Parents may choose sole or joint decision-making responsibility, or they may allocate specific areas where one parent has sole responsibility, such as matters concerning education or religious upbringing.

Decision-making responsibility refers to the authority to make major decisions about the child. This is different from parenting time, which refers to the time a parent has physical care and control of a child. While the law recognises the equal right of each parent to parenting time, this does not mean that a 50/50 arrangement is required. Instead, parents are expected to make decisions about living arrangements and parenting time based on the best interests of the children. This may involve sole parenting time with one parent or having the majority of parenting time with one parent while the other sees the children regularly.

Parents can agree on decision-making responsibility and parenting time, and they should each consult a lawyer when doing so. If parents need help reaching an agreement, they may want to try the services of a mediator. If parents cannot agree, they can apply to the court, and a judge will decide for them. The judge will issue a court order, setting out the legal responsibilities, rights, and obligations of both parents. The judge will make decisions based on what is best for the child, not the parent, and will consider factors such as the child's needs, the child's relationship with family members, the history of the child's care, the child's views, the ability of the parents to provide care and meet the child's needs, any family violence, and more.

It is important for parents who separate to have the terms of parenting time and decision-making responsibility set out by a legal agreement or court order. This will help enforce their rights if the other parent takes the children or denies parenting time.

Property division

Property and debt division in New Brunswick is governed by a legal framework designed to ensure fairness. The Marital Property Act of New Brunswick sets the stage for property division following a separation or divorce. It entitles each spouse to an equal share of the marital property and mandates that they be responsible for an equal share of marital debts.

Distinction Between Marital and Non-Marital Property

New Brunswick Family Law distinguishes between marital and non-marital assets, which directly impacts how property is divided. Marital property refers to assets and debts acquired during the marriage, typically leading to a 50-50 division upon divorce. This includes the marital home, vehicles, and bank accounts, among other things. Non-marital property, on the other hand, consists of assets owned such as businesses, gifts, or inherited property, and is usually not subject to division, although there are exceptions.

Factors Influencing Property Division

The division of property during a divorce is subject to several key factors, including the classification of property, contributions by each spouse, existing legal agreements, and debts acquired during the marriage.

Criteria Used in Determining Property Division

• Type of Property: Assets are categorised as either marital or separate. Marital property is typically anything acquired during the marriage, whereas separate property refers to assets owned prior to marriage or acquired by gift or inheritance.
• Contributions to the Marriage: Both financial and non-financial contributions, such as childcare and homemaking, are taken into account.
• Economic Consequences: The economic effects of the divorce on each party are considered, such as the disparity in earning potential or the economic benefit derived from the marriage by either spouse.
• Duration of Marriage: Longer marriages may result in a more equal division of property, while shorter marriages may lead to a less equal split.
• Future Prospects and Needs: Each spouse's financial needs and opportunities for future acquisition of capital and income are evaluated.

Steps to Take Before Entering Divorce Proceedings

Couples must inventory all assets and debts, both individual and joint. This includes real estate, vehicles, investments, and household items, as well as outstanding debts like mortgages, car loans, and credit card balances. It is also important to determine the value of these assets and debts at the date of marriage and the date of separation, as this can impact the final division.

Importance of Legal Advice

Seeking legal advice is crucial before and during divorce proceedings. A legal professional experienced in New Brunswick family law can provide guidance on the division process, ensuring it is fair and compliant with provincial regulations. They can also help in understanding how the Divorce Act and other provincial laws impact property rights and responsibilities.

Common Misconceptions About Property Division

It is important to distinguish between myths and legal facts when dealing with property division during a divorce. Contrary to common belief, property division involves more than just a simple 50/50 split and is subject to several legal considerations and exceptions.

Special Considerations for Business Owners

For individuals who own a business, the division of assets can be particularly complex. Determining the market value of a business often requires expert analysis, and the ownership structure can affect not just the divorcing parties but also third-party stakeholders. In these cases, legal advice is highly recommended to navigate the intricacies involved.

Frequently asked questions