Difference between revisions of "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 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.

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 <span class="noglossary">decision</span> to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and a spouse's <span class="noglossary">decision</span> 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]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the ''How Do I?'' section of this resource. Look under ''Marriage, Separation & Divorce''.

Under the old ''[[Family Relations Act]]'', married spouses rarely argued about when they separated. The issue 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 both married and unmarried spouses.

In general, the date of separation will have the following effects:

*Each spouse becomes entitled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only.

*Unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree, and

*Married spouses have two years from the date of their ''divorce'' to bring claims in court for division of family property, spousal support, or division of debts.

The [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter talks about the first four issues in more detail; the [[Spousal Support]] chapter talks about the last issue.

Spouses do not need to move out in <span class="noglossary">order</span> 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:

This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in section 3(4)(b), "the court may consider," suggests that this 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:

''[http://canlii.ca/t/gwfq9 Herman v. Herman]'', 1969 CanLII 839 (NS SC)

<blockquote>"[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 <span class="noglossary">order</span> 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."</blockquote>

''[http://canlii.ca/t/g1493 Rowland v. Rowland]'' 1969 CanLII 500 (ON SC)

<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>

''McDorman v. McDorman'' (1972), 11 R.F.L. 83 (NBSC)

<blockquote>"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."</blockquote>

''[http://canlii.ca/t/g161p Lachman v. Lachman]'' 1970 CanLII 477 (ON CA)

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

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 <span class="noglossary">order</span> 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===

Instead, section 8(1)(2)(a) of the ''Divorce Act (Canada)'' allows either spouse to apply for a divorce on the ground that the spouses have been living separate and apart for at least a year, and that there is no chance of reconciliation.

===Separation and children===

Under section 39(1) of the ''Family Law Act'', a parent is a guardian of their child both while the parents live together and they remain guardians even after separation.  

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 <span class="noglossary">brief</span> 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 to take. You can find more information about this program and other issues relating to children and separation in the chapter entitled [[Children in Family Law Matters|Children]], in the section  [[Parenting after Separation]].

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the next section of this chapter, [[Separating Emotionally]].

For some couples, a period of separation does not sound the death knell for their relationship. For some, a period of separation can be a time for rebuilding a relationship and can 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:

<blockquote><tt>A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote>

<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>

<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>

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 have 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 <span class="noglossary">order</span> 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 unmarried 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:

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

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

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

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 <span class="noglossary">account</span>.

===Jointly owned real estate===

Most spouses own real estate as “joint tenants”. The essential feature of this type of ownership is that if one of you dies, then the surviving party will own the entire property.

The ''[[Family Law Act]]'' says that when you separate, you and your spouse each have an interest in the other’s share of the ownership as a tenant in common, but the Land Title office does not know you have separated. How your title is registered will not automatically change as a result of your separation.  

There are reasons for and against keeping the ownership registered as joint tenants. If you do not want to risk the property becoming entirely owned by your spouse in case of your death, then you can change the type of ownership by transferring your interest to yourself.  This change must be registered with the Land Title Office.

===Wills===

If you separate and your spouse dies, you cannot rely on your spouse's will. Unless the Will says otherwise, any gift or appointment the deceased spouse made to you is revoked at the date of your separation. If you want to make a claim to property owned by your spouse's estate, or for support from your spouse's estate, then you must sue your spouse's estate under the ''[http://canlii.ca/t/8q3k Family Law Act]'' and the ''[http://canlii.ca/t/7vbw Divorce Act]''.   

If you still want your spouse to receive a gift or appointment through your Will, you must update your Will and specify that the gift or appointment should proceed even after your separation.

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

===Powers of attorney and other authorizations===

No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney.  Always keep records of your revocation, and how and when you delivered the revocation.

If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that they have a valid power of attorney.  

If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up.

For most people, maintaining spousal benefits costs little or nothing. If that's the <span class="noglossary">case</span>, 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!

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

*your passport

If you have children,, consider taking or securing their birth certificates and 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 than 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 their 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 your spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an <span class="noglossary">argument</span> about who owns what or the extent of the family property and family debt.

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.  

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.

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.

Adultery is only an issue for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as 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 like. No one apart from your ex and your in-laws is likely to criticize you for it.

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 their adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation.

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 at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are divorced.

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 themselves 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 their 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 they introduce 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 relationship.

===Becoming an unmarried spouse===

Someone who is separated but still married can become a spouse in an 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 continue to be married to that person until you get a divorce. If you start a new romantic relationship while separated from your ''married spouse'', this new partner can become your ''unmarried spouse'' if:

*you live with the new person in a "marriage-like relationship" for more than two years, or  

*you have a child with the new person. It does not matter whether you're divorced or not.  

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

*there may be a requirement to share family property and family debt with your new partner, should you separate.  

 

 

* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>

* ''[[Family Law Act]]''

* ''[[Divorce Act]]''

*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]

{{REVIEWED | reviewer = [[Vanessa Van Sickle]], June 13, 2019}}