Separation and the Law

Separation usually signals the breakdown of a married 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 married life. Separation occurs when one or both spouses decide that their marriage 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 chapter will briefly discuss 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. It will also address some common questions about sex and new relationships after separation.

This chapter talks about the legal issues involved in separation. The next chapter, Marriage & Divorce > Separating Emotionally, talks about the emotional dimensions of separation and how those issues can influence the resolution of the legal issues.

I. Separation

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

Some people go to family lawyers to obtain 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 marriage, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the settlement of the issues arising from the breakdown of the marriage.

Now, to be fair, what people often mean by "legal separation" is a separation agreement. This is another thing altogether. A separation agreement is a contract in which a couple decide how the children will be cared for, how their assets will be shared, how child support and spousal support will be paid, if they're to be paid at all, and usually has nothing at all do with whether a couple have separated or not. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement. See the chapter Family Agreements > Separation Agreements for more information.

A. The Date of Separation 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.

In Routley v. Paget, a 2006 decision of the British Columbia 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."

A few other cases have also considered this issue:

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, specially 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." Note 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.

B. Separation at Home It is possible to separate while remaining 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 party wishes 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 marital aspects of their relationship. This incudes 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 cannot consort with one another or otherwise indulge themselves in the usual benefits of marriage.

C. Desertion This is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, which arose after one spouse had abandoned the other 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.

D. Separation and Children Once a couple separates physically, meaning one parent has actually left the house, the parent who stays with the children and cares for them on a day-to-day basis will be considered to have sole custody of the children under the Family Relations Act. Both parents will remain joint guardians of the children, until a court or a separation agreement says otherwise. Usually, a separation agreement or court order is required to formalize issues relating to custody, guardianship and access.

Separation can be extraordinarily difficult on children. In the Provincial (Family) 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 chapter Children > Parenting after Separation.

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 chapter, Marriage & Divorce > Separating Emotionally.

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II. 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.

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 couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of ninety days without "stopping the clock," so to speak, on separation as a ground of divorce. If a couple has lived together for more than ninety 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.

Note that the ninety 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 ninety days within the one year period of separation.

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III. Additional Considerations Following Separation

Once you've separated there a lot things you may want do, change or adjust to reflect the new circumstances of your relationship with your spouse. The following are just a few suggestions; others can be found in the How do I ? section of this website.

A. 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.

B. 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.

C. Wills A divorce has certain specific effects on how property is distributed following someone's death, regardless of whether that person dies with a will or without a will. See the first chapter in the section Other Family Law Issues for more information.

Separation, on the other hand, has no effect on how a person's property is distributed upon his or her death. As a result, if you don't have a will, you should make one. Secondly, if you do have a will, you may want to change it if your spouse is among your present beneficiaries.

Special wording is normally used when changing a will following 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 changing your will.

D. 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 competently. 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.

E. Medical and Dental Insurance Normally, spouses and children are still covered by the other spouse's health insurance after separation. Coverage for children usually ends once the children turn 19; coverage for spouses will almost always ends on divorce. You may want to contact the people who administer your plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, 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!

F. 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 or secure one-half of easily moved items, such as the children's clothing, furniture and personal effects, but think twice about this and be cautious. The last thing you generally want to do after separation is to ramp up the tension still further; if you absolutely cannot live without the dish set, then take the dish set, but otherwise it's best to tread lightly.

Now, this may seem a bit ghoulish and perhaps a bit pessimistic, but you should also take a list of all of the assets 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 your spouse deals 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 about the true extent of your spouse's assets.

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IV. Sex and New Relationships after Separation

A lot of this website's readers have asked questions about the consequences of sex with their spouse, sex with another person, and new romantic relationships after the breakdown of their marriages. This segment talks about sex with spouses, sex with people other than spouses, new relationships, and how a married spouse can be in a common-law relationship with someone else while still being married. This information applies primarily to married couples and concerns relationships which begin at any time after separation to the date of divorce.

A. 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 court decides that the care and control of the children should be managed, the amount of child support to be paid, whether spousal support should be paid, or how your assets should be divided. The court does not look into this sort of conduct in determining these issues.

The only two things you really 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. See the chapter Marriage & Divorce > Divorce for more information about the grounds of divorce and the effect of condonation.

B. 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, married aspect of the relationship to have concluded and your obligation to remain monogamous along with it. You won't be divorced until you get a court order, of course, but the marital aspects of your relationship 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 court decides that the care and control of the children should be managed, the amount of child support to be paid, whether spousal support should be paid, or how the family assets should be divided. The court does not consider this sort of conduct in determining these issues.

1. Is it adultery? 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.

2. 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.

C. New Relationships New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not be concerned with the new relationship, and it won't have an impact on your divorce. Entering into a new relationship will not usually have an impact on how the court decides that the care and control 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 assets should be divided. The court does not look to this sort of conduct in determining these issues. Besides, the vast majority of separated spouses find themselves in new relationships before they are divorced.

1. What about the kids? As a general rule, spouses ought to 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 Hallmark 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.

2. 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.

D. Common-Law Status Someone who is separated but still married can acquire common-law status in a new 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 that two years, you will be considered to be in a common-law relationship; it doesn't matter whether you're divorced from your spouse or not. See the section Unmarried Couples for more information about how a couple becomes common-law.

If you are married and also in a new relationship which qualifies as common-law, you may have an obligation to pay child support for your partner's children and any children you and your partner have together, and to pay spousal support to your partner. These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage.