What does it mean when a married person tells you they are separated from their partner? While they may be communicating that their relationship has come to an end, the actual legal meaning of being “separated” versus being “divorced” are distinct.
The legal term “separated” refers to the date from which the parties in the relationship begin to live separate and apart from each other with no reasonable prospect of reconciliation. While this term does not require the individuals to live in different homes, it does require them to be apart in other ways, such as sleeping in separate bedrooms, not telling others that they are still together, not having meals together and not attending social activities together.
When parties are separated, this is also means that there is no reasonable prospect that they will resume their relationship- such as rekindling a conjugal relationship wherein the parties enjoy each other’s companionship, support and sexual relationship.
Application to Marriages
The separation status of individuals who are married is essential to any subsequent divorce they might seek. While there are certain other limited grounds an individual could rely on to obtain a divorce, the most common is “breakdown of marriage” pursuant to Section 8(1) of the Divorce Act. In order to be divorced under this ground, the parties have to have lived “separate and apart” for at least one year immediately before a divorce proceeding is determined. They must still be living separate and apart at the start of said divorce proceeding. As such, a married party could file an Application for Divorce with the Court immediately after they have separated from their spouse, but the actual divorce may not be granted until they have lived separate and apart for at least a year.
It should be noted that the Divorce Act does outline the treatment of situations where spouses reconcile after they have initially separated. If a couple reconciles for 90 days or more and then separates once again, they are considered to be separated beginning on that second date. As such, if they reconciled for less than 90 days, they would be considered to have been separated on that first date before the reconciliation occurred.
Individuals who are married and looking to separate at some point in the future should keep in mind that the date on which they begin this separation may be directly relevant to the equalization of their net family property, if such a claim is made.
This is because the date on which the parties separated, is one of the potential valuation dates laid out in Section 4(1) of the Family Law Act, which would serve as the reference point used to determine when property will be appraised. These valuations are then used as part of the calculation of each party’s net family property, which is a measurement of the increase of each party’s wealth minus their debts between the marriage and valuation date. This resulting value is divided in half, and whichever party who has the higher value pays that amount to the other party to “equalize” their net family property.
This means that the separation date used for equalization purposes under the Family Law Act would be the date they separated after their short reconciliation. This would be the case no matter the length of that reconciliation period. A couple in this scenario could therefore have two separation dates- one for the purpose of obtaining a divorce (the one before the short reconciliation), and another for the purpose of equalization (the one after the short reconciliation).
Application to Common Law Relationships
Though common law couples in Ontario do not need to seek a divorce, nor do they have the equalization regime automatically applied to them like married couples, their status as being “separated” is still important.
To define a common law couple as “separated”, we must first understand what it means to be in a common law relationship. To have access to the spousal support provisions under Part III of the Family Law Act, spouses must have cohabitated for at least three years, continuously or been in a “relationship of some permanence” which also resulted in becoming the parents of a child (biological or other). It is not necessary for spouses to be cohabitating in the same physical residence to meet the requisite level of cohabitation. Instead, a Court will look to the context of a relationship as a whole, including the living arrangements, sexual, social, societal and personal behaviour of the couple as well as their economic practices.
The legal separation of common law couples tends to be treated similarly to that of married couples in that common law couples are considered legally separated when they begin to live separate and apart from each other with no reasonable prospect of reconciliation. Note that since there is no reconciliation provision in the Family Law Act like that of the Divorce Act, there can be no reconciliation (no matter how brief) after the date of separation, for the couple to be considered to be separated.
Another major difference in the case of common law couples is that as they have no need to obtain a Divorce Order, the aforementioned minimum one-year period of separation is unlikely to be relevant to their matter.
Separation Agreements
So where do Separation Agreements fit into the mix? If a couple, married or common-law, does not wish to litigate their matter and obtain a trial decision, they will likely settle and negotiate a Separation Agreement. These agreements take their name from the fact that they determine obligations arising from the relationship and its breakdown. In the case of a married couple, such an agreement will often contain provisions on how a divorce will later be obtained.
Regardless of whether you are married or common-law, it is always advisable to seek the help of a licensed Family Law Practitioner to understand the implications of your separation and the legal solution that would best fit your situation.