Ben and Jen: Are They Living Separate and Apart?

After announcing the end of their 10-year marriage in June 2015, Ben Affleck and Jennifer Garner have reportedly not taken any steps to legally finalize the end of their relationship. Neither Ben nor Jen have initiated the filing of divorce papers, and Ben still lives within eyeshot of Jen and their children - in a guest house on the family's property.

This leaves us wondering... are Ben and Jen really separated, or are they contemplating reconciling?

Well, to get a divorce in Ontario, a party must demonstrate a breakdown or dissolution of the marriage. Most divorces are based on a separation - one that is established by living "separate and apart" for at least one year.

Although the most common or otherwise intuitive understanding of living separate and apart involves one (or both) spouses physically moving out and living elsewhere, it is possible to be separated whilst still living under the same roof.

When determining whether spouses are separated whilst living in the same home, courts will consider several factors and look at the particular circumstances of the relationship:

  • whether there was physical separation,
  • whether the decision to remain in the same home was for the sake of the children or motivated by economic necessity,
  • whether there has been an absence of sexual relations, etc.

Generally, living separate lives with an intention to end the marriage is sufficient to establish that the spouses are living separate and apart (even while sharing the same physical space).

So, even if the guest house were not considered a separate residence, Ben and Jen may nonetheless be living separate and apart, as long as either one of them can demonstrate a recognition that their relationship has broken down and is over.

But, what if, during their separation, Ben and Jen attempted to reconcile or contemplated staying together? In Canada, the Divorce Act encourages reconciliation and allows spouses to resume cohabitation for up to (but not more than) 90 days for the purposes of reconciliation. During this time then, Ben and Jen could resume their relationship, share their lives, and make an effort to work through their issues. If unsuccessful, this reconciliation period would not affect or interrupt the one year separation period.

If reconciliation is not on the table however, Ben and Jen would need to be wary of the limitation periods that could affect their claims. Ontario's Family Law Act would allow them six years from the date of their separation to file an equalization claim for property division. Their claims for spousal support, child support, or custody and access would not be affected by a limitation period.

So, even if they've made no progress in settling their matters, or their divorce has gone nowhere, fans can rest easy... Ben and Jen have some time to sort out their affairs.

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