Amicable Separation or Divorce

Deciding to break up as a couple is never easy. Often, the final decision is only made after a long period of pain and uncertainty, especially when children are involved. Once they have come to a decision, more and more couples today are choosing to make the break as amicably as possible, without fighting and in an environment conducive to coming to an agreement. If you are one of those couples, your notary can inform you and advise you on the legal consequences of a separation or a divorce. Notaries have traditionally acted as family advisors and are specialists in civil and matrimonial law. With their academic background and contractual experience, they are outstanding legal advisors. A notary can help enlighten and guide you in the process that leads to separation or divorce. But, first, do you know all of the various distinctions?

DE FACTO SEPARATION: NO LEGAL EFFECT 

When the spouses cease to live together, this is called de facto separation. A de facto separation, no matter how long it goes on, does not break the ties of marriage.

Even if the spouses no longer live together, they still owe each other the marital duties of respect, fidelity, support and assistance.

For example, a spouse who has been de facto separated for several years may still go to court to claim support if he or she becomes unable to support himself or herself. In addition, a de facto spouse may be held liable for debts related to the current needs of the family.

De facto separation does not in itself lead to the division of the family patrimony. However, the exact date of such separation may be considered by the court for the division of the family patrimony if the parties subsequently obtain a judgment for separation or divorce.

LEGAL SEPARATION 

Legal separation is declared as a result of a court judgment. Both spouses, or either spouse, may apply to the court for such a judgment if there is a serious breach in the relationship and the couple no longer wishes to live together.

Legal separation means the spouses no longer have any obligation to live together. But the other duties and obligations arising from the marriage remain, as the spouses are still husband and wife. They cannot, therefore, remarry. If the matrimonial regime of the spouses was not separation of property, this is the regime that will come into effect under legal separation.

Legal separation leads to the division of family patrimony.

DIVORCE 

A judgment of divorce follows the breakdown of the marriage. It definitively ends the union and breaks the marriage bond. It leads to the division of the family patrimony and the dissolution of the matrimonial regime.

Among other things, the law recognizes the principle of “no fault” divorce. In fact, as of 1986, it is no longer necessary to accuse the other spouse of a conjugal crime such as adultery or physical or mental cruelty in order to obtain a divorce. Either spouse or, better still, both can apply for a divorce if the spouses lived separately for at least one year before the divorce judgment was pronounced and if they were living separate and apart at the date divorce proceedings were instituted. In such circumstances, spouses will often benefit from protecting their respective interests before obtaining the divorce decree. Talk to your notary to get all the necessary advice.

AMICABLE SEPARATION OR DIVORCE 

In order to obtain an amicable separation or divorce judgment, both spouses must have previously agreed on all the consequences of their break-up.

Your notary can write up a draft agreement for this purpose. This is a central document that will be submitted to the court upon presentation of your application for legal separation or divorce. In pronouncing a judgment of legal separation or divorce as a result of a joint application accompanied by the draft agreement, the court is essentially ratifying your draft agreement.

WHAT SHOULD BE INCLUDED IN THE DRAFT AGREEMENT? 

The draft agreement settles all the consequences of the split. For example, it will provide answers to the following questions:

• Where will the children live? How will custody and access be shared?
• Who will pay tuition fees?
• Who will continue to occupy the family residence? Would it be better to sell it?
• Who will keep the furniture?
• Who will pay the common debts?
• Will there be an alimentary pension? For whom and for how long?
• How will the family patrimony be shared?
• How will the matrimonial regime be liquidated?
• Will there be any compensatory allowance? Etc.

THE ADVANTAGES 

Statistics show that an amicable break-up results in more benefits than a judgment obtained in a climate of confrontation and fighting.

This out-of-court process can, of course, make things go faster. Costs and legal fees are lower. In addition, children appear to be much less negatively affected by their parents’ breakup if the father and mother can still communicate and agree.

There are no winners or losers in this kind of judgment, since it endorses the outcome of appropriate negotiations and agreements that are freely made by responsible people who are committed to making the decisions for themselves.

FAMILY MEDIATION 

If questions arise about a particular topic, or if the relationship between the spouses deteriorates to the point of making it difficult to reach any agreement on the consequences of the breakup, the couple may want to opt for family mediation. It can be wise to go for family mediation at the start of the process, in situations where communication is expected to be difficult.

Many notaries have taken special training courses to develop this kind of expertise and have been accredited to act as family mediators by their professional order. They can therefore, in an impartial manner, help the spouses resolve their conflicts and draw up a viable agreement that will solve the problems surrounding the reorganization of their family affairs, to their mutual satisfaction.

Family mediation is an alternative method of conflict resolution. It is also an alternative to the traditional judicial process. Unlike within the judicial process, during mediation there is room for emotions and direct exchanges between the spouses.

THE ROLE OF THE NOTARY AS MEDIATOR 

Family mediation is not therapy aimed at reconciling the parties. Before undertaking mediation, the notary-mediator must ensure that the couple’s decision to separate is irrevocable. The notary-mediator is there to ensure that the solutions chosen are fair and equitable for all parties and that they comply within existing laws. The notary-mediator does not give an opinion but provides all the legal information necessary for the parties to make their own informed decisions.

THE STAGES OF MEDIATION

The process of mediation is extremely flexible. Depending on the points or difficulties to be covered, it can range from two to eight sessions lasting from one to two hours each.

The steps followed by the notary-mediator are substantially the same for each mediation process.

1. The first meeting is an information session, where the notary-mediator explains to the parties what constitutes the process of family mediation and its basic rules. If, at the end of this first meeting, the parties choose to continue in this way, the notary-mediator asks them to sign a consent to the mediation which demonstrates their respective good faith and their willingness to cooperate, and establishes the costs related to the process.

2. The notary-mediator, in collaboration with the spouses, analyzes the problems that arise and establishes the needs and interests of each of the spouses and of the children.

3. Thereafter, the spouses and the notary-mediator explore options and verify whether they meet the established needs.

4. When the parties have agreed on the necessary decisions, the notary-mediator will prepare a draft agreement that gives full effect to their wishes. The notary-mediator ensures that the solutions included in the draft agreement are in accordance with the law and ensures that the agreement respects the interests and meets the needs of all concerned.

5. Once the draft agreement has been signed, a joint application for separation or divorce on the basis of this agreement must be made. Given the precautions taken, the draft agreement is very likely to receive the court’s approval and result in the pronouncement of a judgment for legal separation or divorce.

THE NOTARY AS JURIST OF THE AGREEMENT 

As specialists in the drafting of contracts, notaries, by virtue of their training and the duties imposed on them by law, are impartial jurists charged with enlightening and advising the parties regarding the legality of their decisions.

Fostering a climate of understanding conducive to negotiation, the notary is a competent professional who can help you achieve a “successful” separation or divorce.

Source : Chambre des notaires du Québec (Translation)