Frequently Asked Questions (FAQ)
+ My partner and I want to live together. Do I need a Cohabitation Agreement?
While you don’t need one, we strongly recommend that you have a Cohabitation Agreement prepared if you wish to protect any assets that you are bringing into the relationship.
It would also be a good idea to have a Cohabitation Agreement if you are looking to limit your risk to any potential spousal support claim.
We also strongly recommend that you retain a lawyer to negotiate and prepare your Cohabitation Agreement to best ensure that this document is legally valid and binding in Ontario.
+ My partner and I are thinking of buying a home together, and I will be putting in more money towards the purchase. How do I protect myself?
Whether you’re planning on getting married or living together common-law, it is highly recommended that you retain a lawyer to prepare either a Cohabitation Agreement or Marriage Contract, setting out how the value of the home will be divided in the event of a separation.
+ When would be a good time to make my will?
If you don’t already have a will and you are going through a separation, we strongly recommend that you make a will once all the issues in your separation have been resolved.
If you do have a will and it was made prior to your marriage, your will will be automatically revoked upon your subsequent marriage unless the will was made in contemplation of that marriage. However, a will is not automatically revoked by a separation or divorce. It is therefore highly recommended that you have a will done immediately after the issues in your separation have been resolved
+ Can my spouse kick me out of the matrimonial home if I’m not on title?
Because the matrimonial home has special status under Ontario family law, regardless of who holds title, both spouses have equal rights of possession to the home until those rights are voluntarily relinquished, or through an order of the Court.
A party has the option of asking the Court for an order granting him/her exclusive possession of the home. In short, no, you cannot be immediately kicked out of the home if you are not on title.
+ My spouse and I have separated. When can I change the locks on the matrimonial home?
We strongly recommend that you not change the locks immediately after separation. Both spouses have equal rights of possession to the home until those rights are voluntarily relinquished, or through an order of the Court. Until that happens, you should not be changing the locks.
If you are a common-law spouse and this relates to a family residence, we recommend that you contact a family law lawyer as soon as possible as this issue is more nuanced.
+ Do I have to share my pension with my spouse?
If you are married and you do not have a Marriage Contract specifically excluding your pension, then it will be considered an asset, just like any other asset, that must be equalized when you separate.
+ What happens to our pet if I separate/divorce?
Many of us consider our pets to be members of our family, but in Ontario, pets are still considered as property. Pets will therefore be divided according to ownership.
That being said, it’s not uncommon for people to negotiate terms into their Separation Agreement providing for how their beloved pet will be shared and cared for.
+ What happens to the engagement ring if I get separated/divorced?
It depends. If the wedding is called off, there may be a requirement to return the engagement ring. If the wedding is not called off and you get married, the ring is yours, however you may need to share in the appreciation of the value of the ring between the date of marriage and date of separation.
To ensure that there is no misunderstanding, a Cohabitation Agreement or Marriage Contract can set out how the ring will be treated in the event of a separation.
+ The matrimonial home is only in my name. What happens if I separate/divorce?
If you have a Marriage Contract setting out how this asset is to be divided upon separation, good for you! The terms of your contract will dictate how the home will be divided between you and your former spouse.
However, if you do not have a Marriage Contract, the matrimonial home has special status under Ontario family law regardless of who holds title. The value of your home at the time of separation will therefore be subject to equalization between you and your former spouse.
+ What is an uncontested divorce?
An uncontested divorce is when one party files an application for divorce, and the other spouse does not file an answer because he/she does not oppose or contest the divorce.
Generally at this stage, the parties have already resolved all of the issues arising from their separation such as custody, access, child support, property division/equalization, etc., and are ready to move forward with finalizing their divorce. In other instances, the parties may just be looking to obtain a divorce order at that stage in their lives.