Just the Two of Them

Is the relationship between Hollywood mega-star Will Smith and Jada Pinkett Smith on the rocks? Conflicting reports have been surfacing over the past week, some indicating the two have separated, others indicating the separation rumors are false, and even more suggesting there was a brief separation, but that the couple has reconciled. Talk about Wild, Wild West.

Complicating the matter are the allegations that Ms. Smith was gettin' jiggy, so to speak, with her Hawthorne co-star (and the newly separated) Marc Anthony, who was the subject of our Celebrity Blog recently. This might be some sort of lead-in to an elaborate celebrity wife swap show, but I don't think almost-Scientologists would get involved in stuff like that.

Their situation, if embodied by a less-famous Canadian couple, would fuel debate about the time frame after which they could actually obtain a divorce. The uncertainty would also impact the calculation of the equalization of net family property.

Section 8 of the Divorce Act reads as follows:

Divorce

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

The adultery option is difficult to prove and therefore can be time consuming and expensive. It is therefore rarely exercised. The large majority of divorces in Canada are applied for on the grounds that the couple has been living separate and apart for at least one year.

If down the line one of the two Smiths decided they would like to get a divorce, the date on which the year-long clock that determines their eligibility for one starts running would likely be a matter of contention. They have been seen arguing in public, Will has even been spotted fleeing the matrimonial home in a teary-eyed state. But there are also examples to refute the notion the couple may be living separate and apart, such as their magical afternoon date in Malibu and the assertions marital harmony from Carlton Banks, I mean... oh who am I kidding, nobody identifies him by his real name.

Determining the date of separation is often a question of fact because it involves an analysis of a variety of factors. One has to consider whether the spouses: are eating together; sleeping in the same room, or in the same bed; run errands together; go to social functions together; and on and on and on. We seem to be in the initial stages of a potential scandal, but if the time comes for Will and Jada (and the nameless, hypothetical Canadians I have been using to mirror them) to "lawyer-up," they need to be prepared to assess the aforementioned elements of their relationship and come to terms on a mutually agreeable date of separation.

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