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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. | 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 | #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); | |||
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, 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: | |||
<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> | ||