While legal separation is an evolving process and usually takes place over many months, the date of the separation is important for married couples. That date is used as the date for the valuation of all property that will be divided between the spouses (see the Division of Property section for more information).
Additionally, parties must be separated for one year before they can apply for divorce, unless one spouse is applying for divorce on the grounds of adultery or cruelty.
Issues surrounding separation should be addressed immediately. These issues often include child support, spousal support, division of assets, what will be done with the matrimonial home, who will have custody of the children, how decisions regarding children will be made, and who will spend time with the children and at what times (an access schedule).
When Are Parties Separated?
Separation occurs when one spouse has the intention to live separate and apart from the other. This does not mean that you and your partner have to be living in different homes. It is possible to live "separate and apart" under the same roof.
To determine if spouses are in fact living separate and apart, courts look at factors such as whether they
- Share a bedroom
- Have sexual relations
- Prepare and eat meals together
- Attend social events as a couple
- Share chores
- Continue to communicate about and accommodate one another’s schedules
The Divorce Act encourages reconciliation by allowing parties to resume cohabitation for the purposes of reconciliation without terminating or interrupting the one-year separation period, provided the cohabitation does not span more than 90 days.
When Is Separation Beneficial?
It is not uncommon for spouses to continue to live together through the separation process. Childcare requirements, housing needs, and financial realities may make it difficult for either party to move out. It is also not advisable for either party to leave before the issues surrounding separation have been negotiated. The party who moves out gives up the status quo by doing so, and can then have greater difficulty making certain claims, such as for exclusive possession of the matrimonial home or custody of the children.
In addition, if one spouse is awarded support, that order can be retroactive to the date of separation. If the spouse who would be the support payor has moved out and has not been supporting the other spouse during the separation period, they may owe retroactive support for that time.
What Not Just Get a Divorce?
After one year of separation, either or both spouses can apply for divorce, but if there are children of the marriage, courts will only grant a divorce if they are satisfied that reasonable arrangements for child support have been made, which usually means that the payor is paying the Table amount of child support, as set out in the Child Support Guidelines.
Many couples remain separated for years, and only go through the formal process of divorce if one of them seeks to remarry.