Ending a relationship is hard. It can take an emotional (and physical) toll on you and your partner or spouse. You have to think hard and consider many things. And if you have children, there will be even more to consider. If you are a newcomer immigrant considering separation or divorce, the information below can help you make a more informed decision and give you an idea of how to proceed:
What is the difference between separation and divorce?
According to Manitoba Family Law, if you are married and decide to separate, you are still considered legally married even if there is a court order of separation. Manitoba Law will apply to you on matters such as parenting arrangements (custody), financial support, or division of property. This law also applies to common-law relationships. Common-law couples are people who live together in marriage-like relationships but they are not legally married. They can also register their status as common law with the Vital Statistics Agency, but this is voluntary. It is not required.
Federal Law applies to married spouses seeking divorce. Once you are granted a divorce, your marriage is ended. The Divorce Act will guide you on matters regarding parenting arrangements, financial support, and others. The Divorce Act also states that you have to meet three eligibility criteria to apply:
- You were legally married in Canada or in any other country.
- You intend to separate permanently from your spouse or have left your spouse already. You do not believe that there is a possibility that you will get back together.
- You and/or your spouse have lived in Manitoba for at least a year before your application.
To be granted a divorce, you have to prove that marriage breakdown has occurred. You can establish this in three ways:
- separation for one year or more
- adultery, or
- mental and physical cruelty
Petitioners will be asked to show evidence or proof.
How do I get separated or divorced?
No matter what your reason is for seeking separation or divorce, it will help to consult someone. A good option would be to go to your nearest settlement service agency. They can refer you to the most appropriate services depending on your situation. It can be for counselling, legal help, or other types of support. You can also go to this page to get contact details of agencies you can ask help from: Help for immigrants (if you are in an abusive relationship and are in immediate danger, call 9-1-1). After your initial consultation, a case worker or lawyer will help you go through the next steps.
To know more details about the process, watch this presentation from the Community Legal Education Association on Separation & Divorce in Manitoba:
What are your rights when you are separated or divorced?
Whether you are separating or getting divorced, you may have a right to economic support or property. Determining this will depend on many factors. The court will consider the length of the relationship; functions each performed during the time they lived together; existing agreements or orders; financial means, earnings or earning capacity of each; financial needs; standard of living; any other obligations to support children or others; property settlement; and whether the relationship has an effect on the earning capacity or financial status of either parties.
You will need to establish agreements regarding:
- Parental arrangements (custody and access)
- Financial support
- Division of family property
- The right to live in the family home
- Responsibility for family debts
- Estate rights on the death of the spouse
How will this affect my immigration status?
Generally, if you a PR or citizen, you cannot lose your immigration status or be removed from Canada because of separation or divorce. Additionally, if you have been sponsored by your spouse to immigrate to Canada, be informed that the Government of Canada has removed Conditional Permanent Residence. This is a condition that required spouses or partners of Canadian citizens and permanent residents to live with their sponsor in order to keep their permanent resident status. This was removed in April 2017. But if you still have doubts or questions about your particular situation or immigration status, consult your lawyer or ask for legal aid.
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