03 October 2010

The Ins and Outs of Separation... Mostly the Outs

Separation, in the sense of ending a relationship, is actually rather straightforward. What's required is a decision by one person to end the relationship and the announcement of that decision to the other person, although sometimes the announcement is made nonverbally... by moving out.

This post talks about some common misunderstandings about separation and then about how to do it.

The Legal Separation

There's no such thing as a "legal separation" in British Columbia. You don't need a document to say you're separated; you don't need to see a lawyer and you don't need to see a judge to separate.

In fairness, there used to be something called a judicial separation or a divorce a mensa et thoro (a divorce from bed and board). Judicial separations were once required to relieve a married couple of their common law duty to live together and support each other, but this sort of half-divorce hasn't been available for many, many years.

Separation Agreements

Sometimes people mean a separation agreement when they talk about a "legal separation." A separation agreement is a contract which records a couple's settlement of the legal issues resulting from the end of their relationship. Although you don't need a separation agreement in order to separate, separation agreements are an excellent way to avoid court.

How to Separate

A couple is separated once either or both people decides that the relationship is over, announces that decision and terminates the marriage-like aspects of the relationship, such as sleeping together, eating together, doing household chores for the benefit of the whole family and so forth.

The decision to separation only needs to be made by one person; the consent or permission of the other person is not required. The reason why a decision is required at all is to distinguish couples who live separate and apart for reasons like employment from couples who live separate and apart because they've split up.

Staying Under the Same Roof

Most couples move out and find new places to live after they separate. Some couples continue living together after they've separated, usually because living together is so much cheaper than living apart. The court will consider couples who have split up but continue to live under the same roof to be separated looking at things like:
  1. whether the couple have stopped sharing the same bed or bedroom;
  2. whether the couple have stopped having sex together;
  3. the extent to which each person does their own chores;
  4. whether the couple have opened separate bank accounts and begun to separate their finances; and,
  5. whether the couple have stopped going to social functions as a couple.
Separation and the Legal End of a Relationship

For all unmarried couples, including common-law spouses, separation is all that's required to legally end a relationship.

Married spouses, on the other hand, must get a divorce to legally end their relationship... no matter how long they've been separated. There is no such thing as an "automatic divorce." A married couple will be married until they divorce, whether they've been separated for one year or thirty.

This difference is important for unmarried couples because certain limitation dates begin to run from the date of separation, the most important of which involve the right to apply for spousal support and, although this isn't quite accurate, the right to apply for child support for children brought into the relationship.

Future Posts

A future post will discuss a perennially popular topic, sex and new relationships after separation. Separation is a surprisingly broad subject. If there's a topic you'd like me to discuss please say so in a comment to this post.

10 comments:

  1. How simple can a separation agreement be? Can something basic be written out with a limited scope to be revisted later? I ask this because my husband has just asked for a separation and says he wants to make up a separation agreement, but he is also leaving for Afganistan in few weeks. Does a capitol 'S' separation agreement have to include everything from soup to nuts or can we figure that out later? And how do you determine when the 'separation date' was?

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  2. For an example of a bare bones separation agreement, take a look at the DIY agreement published by Self-Counsel Press. (You can find a copy at Chapters, London Drugs and probably Canadian Tire.) For the rest, you'll have to speak to someone to get proper legal advice; I can't give legal advice over the internet. I will say something about separation dates in my next post on this subject.

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  3. Perhaps you could write about the necessity of having a Section 57 declaration done ASAP after a couple separates. My ex and I didn't do that and as a result, my ex ended up with entitlement to my pension, in addition to the years that we were together, from the time we separated until the date divorce order was made (which was a considerable period of time).

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  4. If there are no monies or children involved is there anyway to skip the year of separation? There also was no adultery or cruelty involved either which is the only thing I can find on the net to answer this question.

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  5. I am wondering what to do. I have been with my partner for two years now and living together for one and a half years. Our relationship is over and he wants me out of the house ASAP. One problem, I am having knee surgery on the 7th of Feb and I have no idea when I will be well enough to move a whole house hold my self. I have two children ages 4 and 6. Now my parents are deceased and I have no help. What legal rights do I have.

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  6. I'm sorry everyone, but I can't give legal advice through my blog. To find a family law lawyer in your area, contact the CBA's Lawyer Referral Service at 604-687-3221 or 800-663-1919 toll free.

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  7. Can you tell us anything about the words "Without Prejudice"?

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  8. Sure. Read my post on the subject here.

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  9. My husband and I have been amicably separated for six months. We are both 63. He just purchased a HUGE motorcycle. If he becomes incapacitated, will I be legally responsible to care for him?

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    1. The state can't force you to care for him, but you might be obliged to contribute something to his upkeep by way of spousal support, assuming he can't cover the cost himself.

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