Separating from a spouse isn’t only about diving property and assets and moving on. Separating from a spouse is a process that involves your financial and emotional well-being. At Musson Morneau LLP, our compassionate Toronto divorce lawyers understand the complicated dynamics of relationships and how those dynamics can influence a legal separation.
If you are ready to move forward with a separation from your spouse, you may be working out the terms of a separation agreement. Often, our team is asked, who can legally witness a separation agreement in Ontario? The answer can have an impact on your separation.
A separation agreement is a formal contract between individuals. Under the Family Law Act, a separation agreement is also a domestic contract. This contract between two separating individuals allows them to live separately and apart from one another without having to legally end their marriage. However, separation is not the same as divorce.
Generally, a separation agreement will spell out each individual’s rights and obligations involving the division of property, division of debt and assets, spousal support, parenting time and decision making, medical and dental insurance maintenance, and matrimonial home arrangements. A properly drafted Separation Agreement should outline all legal obligations and expectations between spouses.
Separation may benefit couples who want to move in different directions but still need to function as a unit for their children or families. Often, couples will legally separate from one another while they work out their division of the marital issues and consider whether a divorce is in their best interests. After one year of separation in Ontario, either spouse can apply for a divorce.
Who Can Witness a Separation Agreement in Ontario?
According to the Family Law Act, a Separation Agreement does not need to be witnessed by a lawyer. However, it is often wise to get a lawyer involved to ensure your legal rights are protected. A lawyer can also help ensure that the agreement is valid and contains all requirements outlined by Ontario law. Involving a lawyer or notary public is also beneficial in other ways.
Using a “legal professional” as a Separation Agreement witness means only one witness is required. The legal professional must be either:
- A lawyer
- A member in good standing with the Society of Notaries Public
If you forgo the help of legal counsel, for a Separation Agreement to be legally binding, the document must include:
- The date
- Signatures of both spouses
- Signatures of two adult witnesses
Satisfying these conditions can help make a separation agreement legal in Ontario. The written agreement must be between two consenting parties without undue influence or under duress. A spouse who forces their partner into a Separation Agreement or who misrepresents their financial information in the document risks the agreement being deemed unenforceable by an Ontario court.
Most individuals turn to close family and friends when it comes time to ask someone to witness a Separation Agreement. However, there are a few witness requirements. Minors are not permitted to serve as witnesses, nor can children serve as witnesses to their parent’s Separation Agreement. Parents of the separated individuals, either by birth or adoption, are also not permitted to serve as witnesses. Can family members witness a Separation agreement? Some family members can, but it is best to hand the responsibility over to someone unrelated to you.
A witness should be a person you trust. Agreeing to a Separation Agreement is a potentially life-changing event and should be taken seriously by everyone involved. Again, because finding a witness can be challenging, it is always best to involve a skilled Ontario lawyer when drafting a Separation Agreement. Failing to follow all legal guidelines can jeopardize your separation and potentially put you or your children in an undesirable situation. Protect your rights and the rights of your family by making sure a lawyer reviews your agreement before it is finalized.
Contact an Experienced Ontario Family Law Lawyer Today for Help
Drafting a Separation Agreement can be challenging, especially when you are dealing with the complex emotions that can accompany the break-up of a relationship. You deserve what’s fair. Having a lawyer on your side can ensure that the official Separation Agreement you and your spouse created is fair, equitable, and appropriately witnessed.
At Musson Morneau LLP, we take a collaborative approach to law. That means we focus on preserving relationships and reducing the stress of reaching a mutually beneficial separation arrangement. Contact our Ontario office today to learn more about how we can help you through the process of separation. Let us help guide you through this challenging time and come out to the other side stronger.