03 March 2012

All About Separation

A fair bit of time has passed since I first posted this article and things have changed, most importantly the replacement of the old Family Relations Act with the new Family Law Act. Please visit my post "All About Separation: The 2015 Edition" for an up-to-date and expanded version of this post. Please update your links!

A lot of the people who find my website and this blog have questions about separation. How do I separate? When am I separated legally? Can I see other people after I've separated? In this post I'm going to try and answer these and other questions. If I haven't answered your question, post a comment.

What is separation?

People in a relationship separate when one or both of them decides to end the relationship. People that are just dating break up. Normally, we think of married couples or couples who are living together as separating when their relationships end, probably because most of the time someone winds up moving out.

Separation is an important event under the Family Relations Act, because the date an unmarried couple separated sometimes starts the clock running on the one-year limit within which a claim for spousal support has to be made and sometimes on the one-year limit within which a claim for child support must be made against a stepparent.

Separation will be even more important under the new Family Law Act. Under that act, separation will be what gives each spouse a one-half share of family property.

How do I separate?

A couple is separated once or or both of them has made the decision to end the relationship, said so, and then done something to carry through the intention... like stopping sleeping together, stopping doing chores for the other person's benefit and so on.

Often the decision to separate is made by both people, but it only takes one person decide to end a relationship, and a decision to separate doesn't require the other person's agreement. Everyone is entitled to separate if they wish to end a marriage or common-law relationship.

Can we stay living in the same home?

Although many people move out when they separate, others separate and remain living under the same roof. Frankly, it's a lot cheaper to stay in the same home, as long as you can stand living in such close quarters with each other.

A physical separation is not necessary to separate, there must simply be an intention to end the spousal relationship and the intimacies that usually involves.

Do I need to see a lawyer to separate?

No, absolutely not! The job of the family law lawyer is to help you resolve any legal issues resulting from the end of your relationship. The decision to separate can have legal consequences, and you might consider meeting with a lawyer to talk about those consequences, but separation itself is nothing we can help with.

But what's a legal separation?

There's no such thing as a "legal separation." There used to be something called a "judicial separation," but that hasn't been available for a long time now. For more information about that, see my post "Little Known Family Law Facts #4".

Once you or your spouse or partner has left the family home or announced that the relationship is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Okay, what's a separation agreement then?

What people often mean by legal separation is a separation agreement. This is something else altogether. A separation agreement is a contract that people use to record their agreement about issues like how the children will be cared for, how their assets and debts will be divided and so forth. It has nothing to do with whether a couple have separated or not.

Separation agreements are not always necessary, and you can't be forced to sign a separation agreement. See the Family Agreements > Separation Agreements chapter of my website for more information.

What's the date of our separation if we can't agree?

Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for common-law couples, because time limits on claims for spousal support, and sometimes for child support from stepparents, begin to run from the date of separation. For married couples, there aren't any limitation periods that hinge on separation, but the date can still be important if there is a marriage agreement or some other contract that ties rights or duties to the length of the marriage.

The courts have talked about how to decide the date of separation. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties maintained a sexual relationship after they'd moved out and into separation homes. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."

A few other cases have also considered this issue. In Herman v. Herman, from the Nova Scotia Supreme Court in 1969, the court said this:
"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."
In Hills v. Hills, another case from the same court in the same year, the court said:
"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."
In McDorman v. McDorman, from New Brunswick Supreme Court in 1972, the court said:
"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, specially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."
Simplest of all, the Ontario Court of Appeal in 1970 in a cased called Lachman v. Lachman said:
"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."
What's desertion?

Desertion is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, that arose after one spouse had abandoned the other for at least three years "without just cause." This ground of divorce has long since been abolished. These days we just rely on separation for a period of at least one year to get a divorce order.

Can I still have sex with my spouse after we've separated?

Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated. While it might cause some emotional difficulties, like prolonging the amount of time it takes to recover from a relationship that's broken down, there's nothing legally wrong with having sex with your spouse or partner. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the court decides that the care and control of the children should be managed, child support or spousal support, or how your assets should be divided. The court does not look into this sort of conduct in determining these issues. 

The only thing you really need to think about is if you are married and are asking the court to make a divorce order based on your spouse's adultery or cruelty. If you have sex with your spouse afterwards you could be considered to have forgiven your spouse for his or her conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery or cruelty.

Can I start a relationship with someone else after we've separated?

Yup. Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider your relationship to have ended and whatever obligation you have to remain monogamous along with it. If you're married, you won't be divorced until you get a court order, but the marital aspects of your relationship and the attendant expectations of monogamy will be considered to be at an end.

Having sex with someone else will not have an impact on how the court decides that the care and control of the children should be managed, spousal support or child support, or how property should be divided. The court does not consider this sort of conduct in determining these issues.

Is having sex with someone else after we've separated adultery?

Only married spouses can commit adultery. If you're married it is technically adultery to have sex with anyone other than your spouse while you are married, even after you've separated. However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can sex with someone else after separation be a ground for divorce?

Only married spouses need to get divorced. You cannot sue for divorce based on your own adultery. However, if it's your spouse who's had sex with someone else following separation, you can use his or her adultery to get a divorce, as long as you haven't already asked for a divorce for another reason like separation.

Speaking of adultery, is it a criminal offence? Can I be charged with adultery?

Adultery on its own is not a criminal offence; it's not something you can be criminally charged for.

A fair bit of time has passed since I first posted this article and things have changed, most importantly the replacement of the old Family Relations Act with the new Family Law Act. Please visit my post "All About Separation: The 2015 Edition" for an up-to-date and expanded version of this post. Please do not add further comments to this post. Visit the new article and comment as you'd like! Please update your links.