Can we be separated and live under the same roof? Ask a divorce lawyer.
In order to get a divorce based upon a year of separation, you and your spouse do not have to maintain separate physical living arrangements. A couple that is legally separated must be living separate and independent lives; this can occur even when you are living together and jointly paying a mortgage or rent from a joint bank account.
Under the Family Law Act and under the Divorce Act, spouses are considered “separated” when they live separate and apart and there is no reasonable prospect of resuming cohabitation.
A divorce lawyer will ask about the date of your separation because separation for one year is the most common basis for Divorce in Canada. (Grounds for divorce in Canada are: separation for one year, adultery, and cruelty.)
If you want a divorce based upon a year of separation, you’ll need to establish a date for your separation. Most often, couples will simply agree on the date they separated and move forward negotiating a separation agreement and ultimately applying for divorce.
However, when partners offer different dates, or if one partner denies the fact of the separation, it will be important to consider the particular facts of a situation.
What does it mean to be separated? What is “separate and apart?”
Sometimes the date of separation is clear. It could be the date that you left with your bags packed, or it could be the day that an affair was discovered.
However, partners may also continue to live together after deciding it’s over. It may be that you can’t afford two homes or it may be that you haven’t agreed on who the kids will stay with.
When are you living separate and apart under the same roof?
Courts have held that the determination will depend upon the facts of your particular situation.
Facts that indicate that a couple has separated may include:
- Not engaging in sexual intimacy *
- No longer sharing meals together
- Not attending social or family functions together
- No longer presenting as a couple to the world
- Taking steps to separate bank accounts and credit facilities
- No longer performing the tasks of daily living for each other (laundry, shopping, meal preparation)
* note that a single act of intimacy wouldn’t reverse your separation. There is also an exception for any period of less than 90 days where spouses resume cohabitation for the purpose of reconciliation. If the reconciliation doesn’t stick, you’re not stuck resetting the clock.
You can be quarantined for three months and count that time toward the one year of separation that is required to get a Divorce in Canada.
How do I get a Separation Agreement?
You do not need a separation agreement in order to be separated. Rather, a separation agreement is a type of domestic contract that sets out the obligations and entitlements of the spouses as married or common law spouses who are now living separate and apart.
A separation agreement is an important legal document.
Although you could sit down at the kitchen table and work things out, it is rare that a DIY separation agreement doesn’t create problems in the future. (A major portion of my practice as a London Divorce Lawyer is acting for people who tried to muddle through with a DIY separation agreement.)
Even if you and your spouse agree on custody, property, and support, it is a good idea to have a divorce and family lawyer draft your separation agreement in a way that will give you the maximum predictability and flexibility as you move forward, separate and apart.
To arrange a consultation with a divorce and family lawyer, click here.
