Spouses can be separated as defined in the Divorce Act, or the Parenting and Support Act, even while still living under the same roof. Our family lawyers know that this is a fairly common situation, especially immediately after separation when individuals need time to figure out the logistics of their separation. However, whether this the case in your circumstances will depend on the facts of your specific situation.
Separation vs. Divorce: Determining the Date of Separation in Marriage or common law relationships
The Divorce Act requires that a couple be separated for one year before they can apply for a divorce. The Parenting and Support Act requires the parties be separated at the time of commencing an application. Separation begins when one party decides that they want to permanently end the spousal relationship.
Sometimes there is a specific conversation or incident that allows for a precise date of separation. Other times separation is a more gradual process, where it is more difficult to determine a precise date of separation. The date of separation can be very important if the spouses are dividing property, because many types of property are valued as of the date of separation.
Factors to Consider When Determining Separation Under Shared Residence
Separation under s. 8(2) of the Divorce Act requires that the parties be living “separate and apart”, however there is substantial case law deciding that spouses can be separate and apart while living under the same roof. The case law also is applicable to common law couples. Often this means that one spouse is sleeping in a separate room, and that their routines are distinct.
If there is disagreement over when the parties separated, the courts have laid out a number of factors to consider in determining if a couple has genuinely separated. These include:
● Having meals together
● Attending social events together
● Having sexual relations
● Representations to the outside world
● Vacations together
● Exchanging gifts
● Continuing to attend family functions together
● Separation of finances
This is not a definitive list and no one factor is conclusive of whether spouses living together are separated or not. However, if a court must determine when spouses living under the same roof separated, these are the types of specific facts they will use to make that determination.
The consequence is that two spouses could be living under the same roof, but meet the legal definition of separated. The date of separation impacts how property of the marriage is valued, and when the parties are able to file for divorce. As with all family law issues, the date of separation is very specific to your individual circumstances, and an experienced family lawyer at Lenehan Musgrave can help you determine your situation and options. Contact our office or submit the form below to schedule a consutlation
