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Family

Am I separated from my spouse?

By Marcus Sixta

One question that often arises is “am I separated?” On the face of it, this seems like a simple issue, but if you are living in the same home as your former spouse things can get confusing. Fortunately, this family law issue has come before the courts before and there are factors that we can use to help provide an answer to those in relationship limbo. 

In Canada there are three grounds for divorce under the Divorce Act

  • Adultery; 
  • Mental or physical cruelty rendering co-habitation intolerable; and 
  • Living separate and apart for more than one year. 

Generally, the least contentious and most common ground for divorce is living separate and apart for more than one year. All three grounds for divorce require evidence to convince a judge reviewing a divorce application that a divorce can be granted under the circumstances. Proving adultery or cruelty can be difficult and costly if the party who committed those acts denies it. This can result in a costly trial in family court with witnesses. As it often takes a year to get into a trial on a family law matter anyway, it usually does not make to pursue divorce on adultery or cruelty. Also, judges do not like to consider adultery or cruelty if they do not have to and will opt for separate and apart for one year if this option is available. Therefore, most separating couples wait the one year from their separation to apply for a divorce.   

The principal question often becomes: what is the date on which the parties separated? Sometimes the answer is simple because one spouse physically moved out of the marital home and now lives elsewhere. But this does not always happen. For a variety of reasons, spouses may choose to continue to cohabitate after breaking up. For example, one of the former spouses may not have the financial resources to move out, or the parties wish to continue to live together after separation for the sake of the children, or there is simply a stalemate and neither spouse is willing to leave the matrimonial home. 

Fortunately, the separate and apart clock can start running even though the parties continue to live in the same home. The separating spouses must show that even under the same roof they are living separate lives and have an intention to end the marriage and get divorced. The analysis in divorce court is very fact specific. The judge will look at things such as: 

  • sleeping in separate rooms; 
  • not going out together; 
  • opening separate bank accounts or closing joint accounts;
  • buying separate groceries; 
  • telling friends and family that a separation has occurred;
  • preparing separate meals and eating separately; 
  • lack of sexual relations; and
  • not communicating in an affectionate manner.

The important thing is to show an intention to end the marriage and separate. That intention need not be mutual. It only takes one of the spouses to separate to end the marriage.  

Also, another issue that arises after separation is what happened if the parties try to work things out. Fortunately, the Divorce Act contains provisions that encourage couples to stay together. As long as any reconciliation does not last more than 90 days then the separate and apart clock does not reset. This is important for parties who continue to share a roof because there is a higher chance that some reconciliation may occur. It should be said that the 90 days outlined in the Divorce Act does not have to run together in one block. It is a total of 90 days within the one-year period of separation that is allowed. If two spouses have an on again off again relationship throughout the one-year separation, and the time they were in a relationship amounts to more than 90 days, the clock resets on the starting point for the one-year period to live separate and apart prior to the divorce.  

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