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This chapter will briefly discuss the legal aspects of separation, the rules relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. It will also address some common questions about sex and new relationships following separation. Separation Although many people move out when they separate, others separate and remain living under the same roof. A physical separation is not necessary to separate, there must simply be an intention to end married life and an end to the sharing and the intimacies that marriage usually involves. A spouse can decide to end the relationship with or without the other spouse's consent. Some people go to family lawyers to obtain a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate and apart. Once you or your spouse has left the family home or announced that the marriage is at an end, you're separated. There are no special legal documents to sign or file in court to signal a couple's separation, and there is no such thing as a "legal separation" in British Columbia. Everyone is entitled to separate; the function of the family lawyer is to assist in the settlement of the issues arising from the breakdown of the marriage. Now, to be fair, what people often mean by "legal separation" is a separation agreement. This is another thing altogether. It is a contract in which a couple decides what will happen about the children, their assets, child support and spousal support, and usually has nothing at all 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 chapter Family Agreements > Separation Agreements for more information. The Date of Separation Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for common-law couples, because limitation periods with respect to claims for spousal support and child support for step-children begin to run from the date of separation. For married couples, there are no limitation periods that hinge on separation. Determining the date of separation can be important, however, when the spouses have a marriage agreement which ties rights or obligations to how long the marriage lasts. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties had just such a marriage agreement, but had maintained a relationship following the date they moved into separate homes, a relationship which was, at times, sexual in nature. 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: Herman v. Herman, Nova Scotia Supreme Court, 1969: [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. Hills v. Hills, Nova Scotia Supreme Court, 1969: [T]he words ‘living separate’ connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other. McDorman v. McDorman, New Brunswick Supreme Court, 1972: 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. Lachman v. Lachman, Ontario Court of Appeal, 1970: A marital relationship is broken down when one only of the spouses is without the intent for it to subsist. Separation at Home It is possible to separate while remaining under the same roof as the other spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes, or when neither party wishes to leave the home and the children. In order for the courts to recognize this form of separation, the spouses must live as if they had completely severed their marital relationship. This incudes: sleeping in separate beds in separate rooms; opening separate bank accounts and closing joint accounts; and, separately performing household chores, like laundry and cooking. Either way, the spouses cannot consort with one another or otherwise indulge themselves in the usual benefits of marriage. Desertion This is a common law ground of divorce which arose after one spouse had left the family home against the wishes of the other for a minimum period of three years. This ground of divorce has long since been abolished, but a claim for divorce based on simple separation for a period of not less than one year may be brought instead. Separation and Children Once a couple separates physically, meaning one parent actually leaves the house, the parent who stays with the children and cares for them on a day-to-day basis will be considered to have sole custody of the children under the Family Relations Act. Both parents will remain joint guardians of the children, until a court or a separation agreement says otherwise. Usually, a separation agreement or court order is required to formalize issues relating to custody, guardianship and access. Separation can be extraordinarily difficult on children, who are rarely mature enough to understand what is going on with their parents. In the Provincial (Family) Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which the author suggests that all separating parents take. More information about this program and other issues relating to children can be found in the chapter Children > Parenting after Separation. Separation is of course also difficult for the people who are separating. More information about the emotional dimensions of separation can be found in the next chapter, Marriage & Divorce > Separating Emotionally. Back to the top of this chapter. Reconciliation For some couples, a period of separation does not always signal the end of the relationship. For some, a period of separation can be a time for rebuilding a relationship and become a healthy break that rejuvenates and revitalizes a marriage. The Divorce Act, despite the nature of its primary subject matter, contains a number of provisions designed to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that: A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated (i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose. In other words, a couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of ninety days without "stopping the clock," so to speak, on separation as a ground of divorce. If a couple has lived together for more than ninety days since the first separation, the clock will start again at the end of the last period in which they lived together as a married couple. Note that the ninety days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of ninety days within the one year period of separation. Back to the top of this chapter. Additional Considerations Following Separation Once you've separated there a lot things you may want do, change or adjust to reflect the new circumstances of your relationship with your spouse. The following are just a few suggestions, and others can be found in the How do I ? section of this website. Bank Accounts and Credit Cards You should remove your name form any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority of any of your accounts or credit cards, you should consider cancelling his or her authority. Credit cards, loans and lines of credit can all be "capped" by telling the bank to make the accounts "deposit only." That will mean that no more withdrawals can be made, and the only transactions that can take place are deposits. Insurance Policies and RRSPs You may wish to change the beneficiary of your policies and RRSPs if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary such an account, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary. Wills A divorce has certain specific effects on how property is distributed following someone's death, regardless of whether that person dies with a Will or without a Will; see the first chapter in the section Other Family Law Issues. Separation, on the other hand, has no effect on how a person's property is distributed on his or her death. Firstly, if you don't have a Will, you should make one. Secondly, if you do have a Will, you may want to change it if your spouse is among your present beneficiaries. Special wording is normally used when changing a Will following separation, usually something along these lines: "I make this my Will following my separation from [name], my [wife/husband], and in contemplation of my divorce from [name], to whom I leave nothing as [she/he] is well provided for." Powers of Attorney Spouses often have mutual powers of attorney, that is, each spouse may have a power of attorney which gives him or her authority over the other spouse's affairs should the other spouse become unable to manage them competently. If your spouse has power of attorney over your affairs, you may want to revoke the power of attorney. You should contact a lawyer to have the proper documents drawn up. Medical and Dental Insurance Normally, spouses and children are still covered by the other spouse's health insurance after separation. Coverage for children usually ends once the children turn 19; coverage for spouses will almost always ends on divorce. You may want to contact the people who administer your plan for more information. For most people, spousal benefits cost little or nothing. It that's the case, consider leaving your spouse's coverage in place; it will appear rather mean-spirited if you cancel your spouse's benefits. Finances and Assets When you separate, make sure you take with you or secure the following items:
You may also wish to take or secure one-half of easily moved items, such as the children's clothing, furniture and personal effects. Now, this may seem a bit ghoulish and perhaps somewhat pessimistic, but you should also take a list of all of the assets your spouse owns in his or her own name and of all the things you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions your spouse deals with will do. You can collect that information by writing down the names and addresses of the people who are sending you spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of your spouse's assets. Back to the top of this chapter. Sex and New Relationships after Separation A lot of users of this website have asked questions about the consequences of sex with their spouse, sex with another person, and new romantic relationships after the breakdown of their marriages. This segment talks about sex with spouses, sex with people other than spouses, new relationships, and how a married spouse can be in a common-law relationship with someone else while still being married. This information applies primarily to married couples and concerns relationships arising between the date of separation and the date of divorce. Sex with Spouses There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to emotionally recover from a relationship that has broken down — there is nothing legally wrong with having sex with your spouse. 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, the amount of child support to be paid, whether spousal support should be paid, or how your assets should be divided. The court does not look into this sort of conduct in determining these issues. The only two things you really need to think about are these:
See the chapter Marriage & Divorce > Divorce for more information about the grounds of divorce and the effect of "condonation." Sex with Other People 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 the romantic, married aspect of the relationship to have concluded. You won't be divorced until you get a court order, of course, but the married relationship and 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, the amount of child support to be paid, whether spousal support should be paid, or how your family assets should be divided. The court does not consider this sort of conduct in determining these issues. Is it adultery? Technically speaking, it is, in fact, adultery to have sex with anyone other than your spouse while you are married. You will remain married until you have obtained an order for your divorce. While having sex with someone else might constitute adultery, the court will not 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 it be a ground of divorce? Sex with someone other than your spouse cannot be used as "adultery" for the purposes of getting a quickie since you've already separated and already consider your relationship to be at an end by the time the adulterous acts occur. New Relationships New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not be concerned with the new relationship, and it won't have an impact on your divorce. Entering into a new relationship will not usually have an impact on how the court decides that the care and control of the children should be managed and the amount of child support to be paid, and it will never have an impact on whether spousal support should be paid or how your assets should be divided. The court does not look to this sort of conduct in determining these issues. Besides, the vast majority of separated spouses do usually find themselves in a new relationship before an order for their divorce is pronounced. What about the kids? As a general rule, spouses ought to be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with a "new" parent. You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are likely to be more capable of understanding the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very standardized view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask a new partner to be sensitive to these issues and ask them not to present him- or herself to the children as an alternate parent. What if there are a lot of "new" relationships? Sometimes a newly separated spouse feels the need to go out and explore his or her options, so to speak, and has a series of short-term relationships. This will be very difficult for children of all ages to deal with. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment. In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last for awhile. If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say four months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests, rather than on your own emotional reaction to your ex's new relationship. Common-Law Status Someone who is separated but still married can acquire common-law status in a new relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated. If you are separated from your married spouse, you are still married and will continued to be technically married until you get a divorce. If you enter into a new romantic relationship while you are separated, and live with that person in a "marriage-like relationship" for more that two years, you will be considered to be in a common-law relationship; it doesn't matter whether you're divorced from your spouse or not. See the section Unmarried Couples for more information about how a couple acquire common-law status. If you remain married and your new relationship is one that qualifies as "common-law," you may have obligations with respect to child support and spousal support to both your married spouse and your common-law partner, and you may have also acquired rights with respect to the custody and guardianship of and access to your common-law partner's children. See the sections of this website that deal with these issues for more information. Back to the top of this chapter. 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