09 March 2015

All About Separation: The 2015 Edition

On 3 March 2012 I posted a short article called "All About Separation," which addressed a bunch of questions I am often asked about the mechanics of separation. The post has since become the most frequently read article in this blog with 235 comments and 65,192 pageviews as of writing, dwarfing the next most frequently read article which had a mere 58 comments and 35,323 pageviews. However, lots has happened since 2012, chief among which was the introduction of the Family Law Act in 2013 and the repeal of its predecessor, the Family Relations Act, and it seemed to me that an update was long overdue. This is that update. Read on!

A lot of the people who find my wikibook 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 serious 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 Law Act, because the date of separation is:
1. the date when married and unmarried spouses get a right to a half-interest in all of the family property; 
2. the date when married and unmarried spouses take a responsibility for half of the family debt; and, 
3. the start of the two year period within which married and unmarried spouses must start a court proceeding to divide property and debt under the act.
Separation may also affect whether you are a child's guardian or not. Under s. 39(1), the parents of a child are deemed to be the child's guardians while they live together or after they separate. However, if you separate before the child is born, neither of the parents will be the child's guardian until a court makes an order appointing one or both parents as guardians. Ouch.

Hey, you just talked about "unmarried spouses." What do you mean?

People usually talk about couples in unmarried, long-term relationships as common-law spouses something similar. Even though most federal laws talk about common-law partners, "common-law" is actually wrong, and a bit misleading.

Once upon a time, a couple could get married without the need of a priest, rabbi, imam or marriage commission to utter an incantation and waive a wand. They could get married, simply by agreeing to stay with each other and be faithful to each other in the presence of witnesses. That was an old, now extinguished right under the common law. Hence the phrase "common-law spouse."

However, as I've said, this right is long since gone. All that counts now under the Family Law Act is whether you qualify as a spouse. Under s. 3 of the act, you are a spouse:
1. if you are married to someone else; 
2. if you've lived with someone in a romantic relationship for at least two years; or, 
3. for some but not all parts of the act, if you've lived with someone in a romantic relationship for less than two years but have had a child with that person.
How do I separate?

A couple is separated once one or or both of them has made the decision to end the relationship, said so, and then done something to carry through on the intention.

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 married or unmarried spousal relationship.

How do I know if I'm separated?

That's a tough one, because "separation" isn't defined in the Family Law Act. However, s. 3(4)(b) gives some guidance. It says that the court can consider "communication, by one spouse to the other spouse, of an intention to separate permanently" and "an action, taken by spouse, that demonstrates the spouse's intention to separate permanently" in deciding whether and when a couple have separated. In other words, the court can look at things you've said and things you've done to decide whether the relationship is over.

In general, the court will look at all of a couple's circumstances to decide whether they've separated. Has the couple stopped going out together? Have they told their friends that they've separated? Have they established separate bank accounts? Have they taken steps to deal with joint debt? Have they moved into different homes? Have they signed or started working on a separation agreement? Have they stopped having sex and spending the night with each other? Some separated couples will have done some of these things, others may have done them all.

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. In fact, s. 3(4)(a) expressly says that spouses can be separated even though they continue to live in the same home. A physical separation is not necessary to separate.

Frankly, continuing to live together isn't a bad idea as long as you can stand the company. It's a lot cheaper to stay in the same home with one set of bills than to move into two different homes each with its won set of bills to be paid.

Can I take stuff with me when I move out?

Sure, but be nice about it. Yes, you have a right to half the family property, which could include half the glasses, half the pots and half the furniture, but don't be mean and take half of these things to break up the sets. If you can't afford to replace the pots and pans, the cutlery, the plateware, the glasses and so on, take any extras first.

Also, don't take more than half of the family property unless there is no way to avoid it. This generally isn't a rush and the division of property and debt will be taken care of eventually. If your ex trashes the family property you leave behind, your ex can be made to compensate you for your share in any property that's been disposed of.

What you can certainly take is your own clothes and personal effects, anything your ex agrees you can take, and, if you have kids, a share of the children's clothing and toys.

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, so 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, especially if there's nothing to agree on, and you can't be forced to sign a separation agreement. See the Separation Agreements chapter of my wikibook 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 unmarried spouses because of the time limits on claims for spousal support and the division of property and debt under the Family Law Act begin to run from the date of separation. For married spouses, these time limits begin to run from the date of divorce, which can be many years after the date of their separation.

Married spouses have no limitation periods to ask for spousal support under the Divorce Act.

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, whether and how much child support or spousal support should be paid, or how your property and debts 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 after you've made the claim for divorce, 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, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into 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 your ex isn't happy that you're having sex with someone else, you are technically committing adultery which could be used as a ground for divorce.

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 that can see you can be criminally charged for.