Separation and the Law

Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need for a "legal separation", to hire a lawyer or to seek the approval of a judge.

This section discusses the legal aspects of separation, the rules relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. The information applies to married spouses and unmarried spouses.

This section will also address some common questions about sex and new relationships after separation. The next section, Separating Emotionally , talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

Introduction

Although many people move out when they separate, others separate and remain living under the same roof. A physical separation is not necessary to separate; there must simply be an intention to end the relationship and the intimacies and mutual support that a committed relationship usually involves.

Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and a spouse's decision to end a relationship doesn't require the consent of the other spouse.

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate and apart, although technically speaking it isn't necessary to move out at all. Once you or your spouse has left the family home or announced that the marriage is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship.

Now, to be fair, what people often mean by "legal separation" is a separation agreement. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter Family Law Agreements within the section Separation Agreements.

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:

• 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 accruing family debt and begin accruing their own personal debt,
• starts 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).

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.

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, to 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:

For the purposes of this Act,

(a) spouses may be separated despite continuing to live in the same residence, and

(b) the court may consider, as evidence of separation,

(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.

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:

"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."

Hills v. Hills, Nova Scotia Supreme Court, 1969:

"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."

McDorman v. McDorman, New Brunswick Supreme Court, 1972:

"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."

Lachman v. Lachman, Ontario Court of Appeal, 1970:

"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

Being separated while living together

It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children.

In order for the courts to recognize this form of separation as a separation, the spouses must live as if they have completely ended the romantic aspect of their relationship. This usually includes sleeping in separate beds in separate rooms, opening separate bank accounts and closing joint accounts, separately performing household chores like laundry and cooking, not going out as a couple, and so on. Either way, the spouses must stop behaving as if they are a couple.

Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, it can be very helpful to make some sort of record of the date that separation occurred. Sending a letter or email to your spouse to confirm separation might be a good idea; make sure you keep a copy.

Desertion

This is an old statutory ground of divorce, established in the 1857 English Divorce and Matrimonial Causes Act, which allowed a spouse to claim a divorce after she had been abandoned for at least three years "without just cause."

This ground of divorce has long since been abolished, but a claim for divorce based on simple separation for a period of at least one year may be brought instead.

Separation and children

Under s. 39(1) of the provincial Family Law Act, spouses are presumed to be guardians of their children during their relationship after they have separated.

Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents take. More information about this program and other issues relating to children and separation can be found in the Parenting After Separation page.

Separation is, of course, also difficult for the adults who are separating. More information about the emotional dimensions of separation can be found in the next page, Separating Emotionally.

Reconciliation

For some couples, a period of separation does not sound their relationship's death knell. For some, a period of separation can be a time for rebuilding a relationship and become a healthy break that rejuvenates and revitalizes a marriage.

Married spouses

The Divorce Act contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that:

A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a ground of divorce. If a couple has lived together for more than 90 days since the first separation, the clock will start again at the end of the last period in which they lived together as a married couple.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation.

Unmarried spouses

Because unmarred couples don't need to get divorced, the Family Law Act has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this:

For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

These provisions are important because the date of separation is the date when new property and new debt stops being shared family property and family debt and starts being each spouse's separate property and debt.

Things to think about after separation

Once you've separated there a few things you may want do, change or adjust to reflect the new circumstances of your relationship with your spouse.

Bank accounts and credit cards

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling his or her authority.

Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts deposit only. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the account.

Insurance policies, pensions and RRSPs

You may wish to change the beneficiary of your insurance policies, pensions and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary such an account, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary.

Wills

Separation may stop an unmarried spouse from making claims under the Estate Administration Act and the Wills Variation Act. These laws allow an unmarried spouse to claim a share of the estate of his or her deceased spouse, but only if the spouses were living together at the time of the death.

Separation has no effect on the ability of married spouses to make claims under the Estate Administration Act and the Wills Variation Act. Married spouses claim a share of the estate of his or her deceased spouse as long as they are still married, whether they're separated or not.

As a result of these laws, if you don't have a will, you should make one if you don't want you spouse to share in your estate. If you do have a will, you may want to change it. Special wording is normally used when married spouses change a will after separation, usually something along these lines:

"I make this my will following my separation from [name], my [wife/husband], and in contemplation of my divorce from [name], to whom I leave nothing as [she/he] is well provided for."

You should see a wills and estates lawyer for help making or changing a will.

When married spouses are divorced a former spouse cannot act as executor of the deceased spouse's estate and any specific gifts to the former spouse are cancelled.

Powers of attorney and other authorizations

Spouses often have mutual powers of attorney, that is, each spouse may have a power of attorney which gives him or her authority over the other spouse's affairs should the other spouse become unable to manage them. If your spouse has power of attorney over your affairs, you may want to revoke the power of attorney. You do not need your spouse's agreement to cancel a power of attorney.

If you want to revoke a power of attorney or a similar type of authorization, you should contact a lawyer to have the proper documents drawn up.

Medical and dental insurance

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses will almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits cost little or nothing. It that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

Finances and assets

When you separate, make sure you take with you or secure the following items:

• your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
• your MSP card and your private medical insurance card, if you have one,
• your children's birth certificates,
• your immigration or citizenship documents, if you are new to Canada, and
• your passport and your children's passports.

You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further; if you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse that the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture.

Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in his or her own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending you spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of the family property and family debt.

Sex and new relationships after separation

A lot of readers have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships and how a married spouse can be in a unmarried spousal relationship with someone else while still being married.

Sex with spouses

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support to be paid, whether spousal support should be paid or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, there are two things that married spouses probably need to think about are these:

• Reconciliation: While simply having sex with your spouse won't count toward the 90 day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
• Divorces Based on Adultery: If you are making a claim for a divorce based on your spouse's adultery, if you have sex with your spouse afterwards you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery. The same principle would probably also apply to divorce claims based on cruelty.

Sex with other people

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded and your obligation to remain monogamous along with it. Married spouses won't be divorced until they get a court order, of course, but after separation the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support to be paid, whether spousal support should be paid or how the family property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

Is it adultery?

Adultery is only an issue for married spouses. Technically speaking, it is, in fact, adultery to have sex with anyone other than your spouse while you are married. You will remain married until you have obtained an order for your divorce.

While having sex with someone else might constitute adultery, the court will not care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can it be a ground of divorce?

You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use his or her adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation.

New relationships

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could somehow be seen as a genuine risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed and the amount of child support to be paid, and it will never have an impact on whether spousal support should be paid or how your property and debt should be divided. The court does not look to this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are divorced.

What about the kids?

As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting him- or herself to the children as an alternate parent.

What if there are a lot of "new" relationships?

Sometimes a newly separated spouse feels the need to go out and explore his or her options, so to speak, and engages in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last.

If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships.

Becoming an unmarried spouse

Someone who is separated but still married can become a spouse in unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated.

If you are separated from your married spouse, you are still married and will continued to be married to that person until you get a divorce. If you enter into a new romantic relationship while you are separated, and live with the new person in a "marriage-like relationship" for more than two years or have a child with that person, you will be considered to be in an unmarried spousal relationship; it doesn't matter whether you're divorced or not.

If you find that you're married and also in a new relationship which qualifies as a spousal relationship:

• you may have an obligation to pay child support for your partner's children as a stepparent,
• you will have an obligation to support any children you and your partner have had together,
• you may have an obligation to pay spousal support to your partner, and
• there may be family property and family debt that you might be required to share with your partner.

These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage.

Page resources and links

Legislation

• Family Law Act
• Divorce Act
• Estate Administration Act
• Wills Variation Act

Links

• Legal Services Society’s Family Law Website: Separation