05 November 2010

The Ins and Outs of Separation... Part III:
The Whens

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

Although a lot of people get hung up identifying the date of separation, getting the date precisely right is only critical in one specific situation: when spousal support is an issue for unmarried spouses. I'll discuss the date of separation in relation to married spouses first and then get to this issue involving unmarried spouses.

Divorce and the Date of Separation

Under the Divorce Act, there is only one ground for divorce: breakdown of the marriage. There are three reasons why marriage breakdown may have occurred: separation for a period of not less than one year, adultery or cruelty.

Most divorces are based on the spouses' separation. To calculate the required one year period you have to know when you separated, and the court forms used to claim a divorce, the Notice of Family Claim (Form F3) and the Counterclaim (Form F5), will ask you to state the date of separation. Under s. 8(2)(a) of the Divorce Act, the date of separation is the date when the spouses began to "live separate and apart."


I've written about how separation happens in previous posts. Here's a quick recap.
  • The spouses don't have to agree to separate. All it takes is one spouse recognizing that the marriage is at an end and saying so.
  • Merely living apart doesn't mean a couple have separated for the purposes of divorce. There must be a belief that the marriage is at an end.
  • On the other hand, it isn't necessary for a couple to actually live apart; many separated couples continue to live under the same roof.
As a result, I think it's safe to say that the formal "date of separation" is the date on which a spouse forms the conclusion that the marriage is at an end and takes steps to terminate the marriage-like quality of the relationship. To avoid arguments about the date of separation, it's best if there is some sort of objective marker of separation, such as (a) a communication of the spouse's conclusion that the marriage is over, or (b) a spouse moving out.

Disputing the Date of Separation

Spouses rarely wind up arguing about the exact date of separation because in the vast majority of cases it's not very important. You don't need to be separated for one year before beginning the law suit claiming the divorce; most people have been separated for far more than a year when the court is finally asked to make a divorce order.

If the exact date of separation is argued, it's probably as a defence to the underlying divorce claim, to say, for example, that the spouses have not be living separate and apart for one year when the court is asked for the divorce order or that the spouses were not living separate and apart at the commencement of the law suit claiming the divorce. Arguments like these really only wind up postponing the inevitable and won't be effective to permanently block the divorce order.

If the exact date of separation is not argued, the date set out in the Notice of Family Claim or Counterclaim will do. The court rarely undertakes its own enquiry into the factual accuracy of the claimed date of separation.

Unmarried Spouses and Spousal Support

The Family Relations Act, at s. 1, says that a "spouse" includes someone who is married as well as someone who:
"... lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act is made within one year after they ceased to leave together ..."
This is important because it defines how unmarried couples can qualify as common-law spouses (living together in marriage-like relationship for at least two years) and it says when a person loses the right to apply for an order based on the spousal relationship (one year after the date of separation). To be clear, this definition really only affects a common-law spouse's ability to apply for spousal support and a small number of personal protection orders, because orders about children rest on the definition of "parent", which has a different test, and because common-law couples cannot apply for orders about the division of assets under the act.

When a common-law spouse has a claim for spousal support, the date of separation is very important, more important than it is for married spouses: if the claim for spousal support is not made within one year from separation it cannot be made at all.

The date of separation for unmarried spouses is determined as it is for married spouses. When did one or both spouses reach the conclusion that the relationship was over? If just one spouse made this decision, when was the decision communicated? When did the marriage-like quality of the relationship end?