What is the Difference between a Separation, a Separation Agreement, a Judicial Separation and a Declaration of Irreconcilability?

by Olivier Fuldauer

 These similar-sounding things are actually quite different.  A separation describes the situation where one spouse or both spouses (married or common law) decide not to live together as spouses anymore and take some physical step to create the separation. This can be moving to another room or another home altogether.

A Judicial Separation in Alberta means a type of court order that can be obtained under the Matrimonial Property Act that lets people apply to the court for a division of their matrimonial property. It’s a fairly narrow concept that gets very limited use because it is just one of several possible preconditions to making a court application to divide matrimonial property. The Matrimonial Property Act only applies to married couples.

A Declaration of Irreconcilability is similar type of order that the court can make under the Family Law Act. This order can apply to a broader range of people, not just married people. A Declaration of Irreconcilability states that the parties (married spouses, common law spouses or adult interdependent partners) have no prospect of reconciling. The point of this type of order is similar to the Judicial Separation order described in the above paragraph. It is one of the possible preconditions to making a court application to divide property under the Family Law Act (married or not married people) or matrimonial property under the Matrimonial Property Act (married people).

A Separation Agreement is a type of contract that is the end-result of a negotiation. It is an agreement that can contain as much or as little of what separating people want to agree to in writing. The beauty of Separation Agreements is that they are flexible and legally enforceable, particularly regarding division of property and spousal support.

To be effective under the Matrimonial Property Act, Separation Agreements must have been made with legal advice. The legal advice should include advice on how favourable or unfavourable the Separation Agreement is. An agreement between two people on how they want to sort out their affairs without this legal advice has little or no legal effect.

For most people a Separation Agreement is an important goal because it can give finality on division of property and spousal support. And even though there is less finality on issues related to children, a Separation Agreement still goes a long way toward setting the roadmap for the way forward regarding parenting and child support.

Olivier Fuldauer, Barrister and Solicitor
Olivier’s bio:https://www.aflawyers.ca/fuldauer.php

Email Olivier: [email protected]

Family Law Page: https://www.aflawyers.ca/family_law.php

For more information, please contact the law office of Aarbo Fuldauer LLP, Barristers & Solicitors at:

Address:             3^rdFloor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone:                 403-571-5120

Email:                  [email protected]