What are my rights if I get separated or divorced?

When a couple decides to get divorced, one or both of them may be entitled to certain rights with respect to finances or property. Your rights when you file for divorce in Ontario will depend on several factors, including your exact marital status (legally married or common law) and whether or not you have children.

Are you entitled to spousal support?

In some cases, one spouse will be required to pay spousal support to the other after the divorce is finalized. The right to spousal support can be asserted whether you are legally married, in a common-law relationship with children, or in a common-law relationship that has lasted for three years or longer without children. How is this right determined, or more to the point, who will have to pay whom?

Spousal support is never an automatic right. According to a Supreme Court decision made during a divorce case in 1999 (Bracklow vs Bracklow), there are three conditions under which spousal support will be granted:

• To fulfill a contractual agreement under which one spouse was responsible for the support of the other. The agreement in question could be expressed or merely implied.
• To provide for one spouse who is in need, where the other spouse has the capacity to pay
• Finally, to compensate one spouse for damages, losses or any other hardships they have experienced due to the break-up of the marriage.

In simple terms, to show that you have the right to spousal support, you must be able to prove that you are entitled to compensation, that you and your spouse had an agreement for your economic support, or that the separation leaves you in financial need, which your former partner is in a position to fill.

What are your rights concerning property?

If you are married, you will be required to split your property, with the possibility of one spouse having to pay an equalization payment to the other. This calculation depends on several variables but essentially comes down to the difference between the net family property (NFP) value of each spouse when the marriage ends. The spouse with the higher NFP will have to make an equalization payment to the one with the lower NFP.

In a common-law union, this calculation does not apply. Each partner is entitled to keep whatever asset is in their name. One notable exception to this is the property that has served as the marital home, which would have to be divided between the two former partners.

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