If you and your spouse have decided to separate, you’ll need to settle important issues, such as property and asset division, child custody and access, spousal support and so on.
These decisions usually form part of an agreement that sets out the terms of the separation. A judge will need to see a fully signed and legally valid separation agreement before issuing the final divorce order.
For many couples, this only happens after discussions and negotiations, collaboration between lawyers and/or divorce mediation.
But what happens if your spouse decides not to sign the separation agreement? Can you still get a divorce? What legal options do you have to proceed?
What is a separation agreement and why is it important?
A separation agreement is a legally binding document that outlines the terms by which a couple will separate. It addresses the key issues over which disputes commonly arise when relationships break up.
Most notably these are:
- Who looks after and makes decisions for the children?
- What level of financial support will be provided by the parent with whom the child spends less time?
- How much spousal support will be paid (if any)?
- How will the marital estate be divided between the two spouses?
Because of the important nature of these matters, it’s essential to try to work with your partner to reach a mutually acceptable agreement. Otherwise, further divorce mediation, arbitration or even divorce litigation may be required.
Although it’s not necessary to have a signed separation agreement to get a divorce in Ontario, if the spouses can communicate and work out these issues together in a signed agreement, it means that the divorce process will be smoother, less time-consuming, less stressful and less costly.
A legally binding separation agreement will generally help in the following ways:
- Provide clarity and certainty during a period of change
- Provide a reference point that both spouses can refer to during the divorce process and beyond
- Create more certainty over financial issues
- Speed up the divorce process
- Help spouses plan for the future financially
- Reduce stress and potential conflict (better for parents and children)
Even if you make a separation agreement that you and your spouse agree on, it should be reviewed by a family lawyer or divorce lawyer before submitting it to the court to ensure that it is legally binding, Otherwise, it could delay the divorce process.
Why might your spouse refuse to sign the separation agreement?
Ideally, spouses discuss the main financial and parenting issues involved in the separation, agree on the terms, have a divorce lawyer draft a legally binding document, sign it and finally submit it to the court for a judge to review.
In reality, it’s not always as simple as this. There could be many reasons why a spouse doesn’t agree to sign a separation agreement.
He or she may decide not to go along with the divorce at all or may object to certain terms that are included in the proposed agreement. For instance, one spouse may want more spousal support than the other is prepared to pay.
When there is some conflict in the relationship, the spouse may take legal advice and deliberately delay the process, refusing to sign as a negotiation strategy.
When this happens, the divorce may need to enter an additional stage: alternative dispute resolution. That could mean divorce mediation. At this stage, it’s generally best to take legal advice if you haven’t already done so.
Each spouse has the right to legal representation to help negotiate the terms of the agreement. However, unless you both agree to ask an independent arbitrator to make a legally binding decision, the objecting spouse may still refuse to sign the separation agreement.
At this stage, further legal action may be necessary.
What are your legal options if your spouse won’t sign a separation agreement?
If your spouse is refusing to sign the separation agreement, trying to force them to do it with coercion or threats is likely to make matters worse and may nullify the agreement entirely.
Instead, you should explore your legal options with an experienced divorce lawyer. You might decide to issue a demand letter to your spouse to try to engage (or re-engage) them more in the negotiation and settlement process.
This letter should indicate that you may start a claim to seek relief if he/she doesn’t sign the agreement. It should include a requested timeline for a response and a list of outstanding items that need to be resolved. You will need to prove that the letter has been received by your spouse.
If there is no response from the spouse, your lawyer can help you either approach an arbitrator to settle the issue or file an application to the court, requesting a judge to make an order.
Note that for an arbitrator to settle the outstanding issue(s), it requires both parties to agree to uphold the arbitrator’s decision as final. Without this, the only option is for a judge to decide, which will incur extra time and expense.
Can you still get a divorce if your spouse opposes it?
You don’t need your spouse’s consent to get a divorce anywhere in Canada but you will need to prove that your relationship has broken down irretrievably if you want to proceed.
You should also be aware that if your spouse opposes your divorce, it’s more likely to end up in divorce litigation with a judge having to decide.
During a separation, the informed guidance of a divorce lawyer can help you navigate the legal processes with greater confidence even if your spouse opposes your actions or refuses to sign the separation agreement.
If you have any questions, speak with an experienced divorce lawyer. Book a consultation with Amiri Family Law in Ontario and we will advise you of your options.