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Difference between revisions of "Separation and the Law"

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Separation and the Law (view source)

Revision as of 12:30, 21 March 2013

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→‎The Date of Separation
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===The Date of Separation===
===The Date of Separation===


Under the old ''Family Relations Act'', married spouses rarely argued about when they separated. It could be important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation.
Under the old ''Family Relations Act'', married spouses rarely argued about when they separated. The issues was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation.


Under the new ''Family Law Act'', the date of separation has become very important for married and unmarried spouses. The date of separation is the date that:
Under the new ''Family Law Act'', the date of separation has become very important for married and unmarried spouses. The date of separation is the date that:
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#each spouse's one-half interest in the family property crystallizes;
#each spouse's one-half interest in the family property crystallizes;
#the spouses stop accumulating family property and begin accumulating their own personal property;  
#the spouses stop accumulating family property and begin accumulating their own personal property;  
#the spouses stop accruing family debt and begin accruing their own personal debt; and,
#the spouses stop accruing family debt and begin accruing their own personal debt;  
#begins the two-year period within which unmarried spouses must begin a court proceeding about spousal support and property if settlement can't be reached.
#begins the two-year period within which unmarried spouses must begin a court proceeding for the division of property and debt, if settlement can't be reached (the two-year period for married spouses starts on the date of their divorce);
#begins the two-year period within which unmarried spouses must begin a court proceeding for spousal support, if settlement can't be reached (the two-year period for married spouses starts on the date of their divorce);


Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for common-law couples, because limitation periods with respect to claims for spousal support and child support for step-children begin to run from the date of separation. For married couples, there are no limitation periods that hinge on separation, but the date can still be important if there is a marriage agreement which ties rights or obligations to the duration of the marriage.
The chapter on the division of property and debt talks about the first four issues in more detail; the chapter on spousal support talks about the last issue.


In ''Routley v. Paget'', a 2006 decision of the Supreme Court, the parties had just such a marriage agreement, but had maintained a relationship following the date they moved into separate homes, a relationship which was, at times, sexual in nature. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."
Spouses do not need to move out in order to be separated. What's needed is for at least one spouse to reach the conclusion that the relationship is over, say as much to the other spouse, and then begin behaving as if the relationship is over. That usually means stopping behaving like a couple, stopping sleeping together, stopping doing chores and tasks for each other and so on. Section 3(4) of the ''Family Law Act'' talks about separation:


A few other cases have also considered this issue.
<blockquote><tt>For the purposes of this Act,</tt></blockquote>
<blockquote><blockquote><tt>(a) spouses may be separated despite continuing to live in the same residence, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>
 
This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in s. 3(4)(b), "the court may consider", suggests that the section isn't a comprehensive listing of things the court should consider, and the cases about separation are still very helpful. Here are some of the highlights.


''Herman v. Herman'', Nova Scotia Supreme Court, 1969:
''Herman v. Herman'', Nova Scotia Supreme Court, 1969:
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''Hills v. Hills'', Nova Scotia Supreme Court, 1969:
''Hills v. Hills'', Nova Scotia Supreme Court, 1969:
<blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote>
<blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote>


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