Financial Issues

What if I want to leave the marital home? Can I do so without hurting my divorce case?

You are free to leave the marital home if you desire – but bear in mind that this may not be the best idea, depending on the circumstances of your divorce. For example, if you are seeking custody of your children, yet leave them with your spouse in the marital home, this might make you look irresponsible or uncaring for them in the court's eyes. It may also result in significant financial disadvantages for you and/or your spouse. On the other hand, leaving the marital home may be the only option if you are receiving physical or verbal abuse from your spouse.

If you're considering moving out of the marital home on your own, speak to your lawyer first. Find out what the consequences will be in your divorce case. There are some situations in which physical separation from the other spouse is recommended, but others in which it might negatively affect your chances of getting the best financial or custody settlement.

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In common law, are you entitled to the same as if you were married?

In Ontario, the rights of common-law (including same-sex) partners and married spouses on the breakup of their relationships are not always the same.

The law makes no distinction between married and unmarried couples for the purposes of child support. The rule is that child support is the right of the child, regardless of whether or not the parents of the child are married.

Both the Divorce Act (Canada) and the Family Law Act (Ontario) provide that married spouses are responsible for each other's spousal support on separation in most circumstances when there is need and an ability to pay. There is no minimum time period for which the spouses must be married in order to give rise to a support obligation. For common-law and same-sex partners, the Family Law Act provides that an individual may be responsible for the support of his or her ex-partner if the partners have a child together or if they have cohabited continuously for a period of not less than three years.

The Family Law Act requires that the value of property accumulated during marriage, with a few exceptions, shall be divided equally between spouses on separation. This is regardless of whether or not there was an equal contribution to the acquisition of property by the spouses. On the other hand, there is no presumption in law that the property of non-married partners should be divided equally on separation. Property division will depend on each partner's financial contribution to the relationship and in whose name the property was purchased.

**This faq was first published in the Ontario Divorce Magazine and are reprinted here with their full permission.

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