Your marriage vows might have included “till death do us part,” but you and your spouse need time apart. It might come as a surprise to learn that separating from your spouse does not involve any court proceedings or legal formalities. A separation occurs as soon as a couple lives separate and apart from each other. As simple as it might appear, legal issues, including child custody and parenting plans, should be addressed before the parties actually separate to avoid acrimonious disputes later.
What is separation?
A separation occurs when a married couple, or a couple in a common-law relationship in provinces that recognize the legality of them, live separate and apart from each other. You can be separated from your spouse even though you both continue to live in the same home you occupied before the separation.
The law recognizes that moving out can be a financial hardship or the parties might decide that having both parents living in the same home is better for their children. As a result, living separate and apart, which is the criteria for a separation, may occur even while the parties reside in the same home. As long as you and your spouse do not sleep together, share mealtimes together or do any of the other things normally associated with being a married couple, you are living separate and apart under the law.
How does separation differ from a divorce?
Separation does not terminate a marriage. Parties living separate and apart from each other continue to be married to each other. If you are separated from your spouse, you cannot remarry until a divorce proceeding is begun in court and a judge ultimately orders the termination of the marriage.
Separation as grounds for divorce
The Canada Divorce Act does not permit a judge to end a marriage by granting a divorce unless there is evidence proving there is a breakdown of the marriage. Living separate and apart from your spouse for at least one year is one of the grounds for divorce. The others are physical or mental cruelty and adultery.
The law encourages people to work together during their separation in an effort to reconcile and save their marriage, so you do not lose separation as a ground for filing for divorce by living together during the separation. You can live together for up to 90 days during your separation and still use it as a ground for divorce. The 90 days need not be consecutive, so a couple could make multiple attempts to reconcile as long as the total number of days together during the separation does not exceed 90.
Resolve legal and financial issues through a separation agreement
A separation agreement is a written, binding contract between the parties to a marriage defining the rights each of them has with regard to the financial and legal issues of a marriage, including the following:
- Child custody and parental access
- Child support
- Spousal support
- Property distribution
- Responsibility for debts
The law does not require a separation agreement for you and your spouse to live separate and apart. However, failing to resolve financial and family issues through a negotiated separation agreement leaves them to the court when disputes arise or when one of the parties begins divorce proceedings.
Speak with a lawyer
Moving out of the home you and your spouse lived in while together as part of a separation does not jeopardize your right to share in marital property. You should speak with a lawyer experienced in separation and family law to learn more about separation, moving out of the home and other issues pertaining to living apart from your spouse.