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Separation
I have been separated from my spouse for 2 years. I am thinking of purchasing a home and we have not legally separated. I do not wish to pay for a separation or divorce. Does "permanent separation" apply in BC like it does in some states? (by D of Nanaimo, BC) Well, you should be okay. So long as you are not using assets or funds that would qualify as "family assets" to buy your new house, your ex won't be entitled to a share of it. You must be careful here. The term "family assets" has an awfully broad scope... it includes money kept in a joint account, money earned during the marriage, assets you brought into the marriage and assets you acquired during the marriage, RRSPs, brokerage accounts... essentially anything acquired or used during the marriage for a family purpose. (There are exceptions of course, it really isn't this all-encompasing.) The "family asset" character of a thing follows it into whatever form it may take in the future. In other words, if you sell a car you bought during the marriage to buy something after the marriage, the new thing will adopt the character of a family asset. The best way to protect your new home from your husband will be to get your divorce. I understand you don't want to pay for it, but if you do it yourself and your husband doesn't object, you can do it yourself for no more than the cost of the filing fees... about $350. Lastly, I don't know what they mean in the US by "permanent separation," but we really don't have a similar idea here in Canada, unless a "judicial separation" qualifies, but this too is something which you have to ask a judge to order. Click here to go to the top of the page. Is it still adultery if a separation agreement has not been reached yet, or is the marriage over at a certain time during the separation? (by B of Stayner, ON) Technically, sex with someone else while separated from your spouse is, in fact, adultery. After all, you're still married. You will remain married until you are divorced by an order of the court. Practically speaking, though, separation-sex is rarely an issue. Sometimes it's useful if you need to get divorced promptly, as a divorce can be sought on the grounds of adultery, rather than having to wait the full year for a divorce based on separation alone. Of course people with strong religious convictions might feel differently about post-separation sex. Click here to go to the top of the page. I would like to know if me and my husband are still have sex and sleeping at each other's house about 3 times a night, can we still get a divorce? (by S of Cyberspace, BC) Actually, this may pose a bit of a problem. The important question is whether you or your husband have decided "this is it, our marriage is over." A couple can even live under the same roof, as long as they've decided their marriage is over, as long as they're sleeping in separate beds and keeping separate bank accounts and doing their own chores, and otherwise living as if the relationship was over. In general, having sex on the odd occasion won't stop you from claiming a divorce based on separation at an earlier date. I am concerned about the fact that you're sleeping over and doing it so often. If there are other facts that show that you or your husband have decided "this is it, our marriage is over," you may still be able to claim a divorce based on a separation at an earlier date. So. Have you separated your finances? Do you each do your own laundry and each cook your own meals? Things like that will help establish an intention to end the relationship. Now, all that being said, nothing stops you from claiming that you've separated on an earlier date, so long as you can truthfully say that you did, in fact, separate. This will only become an issue if your husband contests your divorce application or says in an affidavit that you separated more recently than you say you separated. For example, if you say you separated in January 2000, fine. The court will accept your word on the matter. If your husband, in a Statement of Defence, says that you didn't separate until December 2002, you'll have a problem because you'll have to prove your separation while your husband can try to prove that you didn't separate until much later because you were having sex and sleeping over. Then you'll have to argue about it in court. Click here to go to the top of the page. I have been separated from my wife for 3 years now. We live in separate homes, have a separate life. We did not get a divorce yet or a separation agreement. Last year I moved it with my girlfriend. Is it legal to have a common law spouse while I'm still married? Is it legal to declare my girlfriend as common law spouse in this case? (by M of Toronto, ON) There's really nothing "illegal" about being in a new relationship, even a common law relationship, while still being married. It would have been "illegal" a couple of centuries ago, but not now; you are certainly free to be in your new relationship. As far as declaring your common law spouse on your taxes is concerned, assuming, of course, that this is what you mean when you talk about declaring your girlfriend to be your common law spouse, you should see an accountant. First, you may or may not have a tax advantage from making such a declaration, depending on your income and that of your girlfriend. Second, if any claims for spouse-related deductions are being made with respect to your wife, the CCRA will not normally let you claim a deduction for your girlfriend. I suspect that the CCRA will *not* let you claim deductions for both your wife and your girlfriend, but if, on the other hand, you are not claiming any deductions with respect to your wife (except for spousal support, that is), I don't think it'll be a problem. You really should see an accountant about this aspect of your question. Click here to go to the top of the page. What is the difference between a legal separation and divorce? I have been told that once a legal separation aggreement has been signed and 2 years has passed, the couple is no longer married and they do not have to file for divorce. Is this true? (by W of Victoria, BC) Nope, that's not true at all. You MUST apply for a divorce if you wish to get a divorce. A separation agreement merely sets out you and your husband's rights and obligations to one another; nor does the length of time you've been separated count for much. A couple who have been separated for 10 years are still separated so long as an Order for divorce hasn't been pronounced. Click here to go to the top of the page. My husband and I just recently separated and he has filed in supreme court of BC for the marriage to be done and over with quickly. He has suggested that he and I are now "legal separated" and can start dating other people. Is this true? and is there a time alotted for when one can start dating once each partner has separated? What are the consequences of dating during a separation? (by M of Cyberspace, BC) While there really isn't such a thing as a "legal separation" — you're separated from the moment you decide that the marriage is over — there are no legal consequences to dating after you've separated and before you're divorced. None at all. Click here to go to the top of the page. My husband is a long haul driver he is home only a few weeks a year. I don't share the same bedroom when he is home. Can that be used as a year's separation? (by M of Chilliwack, BC) Unfortunately the time element is just one aspect of "separation" as a ground of divorce. The other aspect is that the separation must be intentional. You must consider your relationship to be at an end, and that's when separation occurs. A soldier, for example, who is posted overseas for a couple of years wouldn't be able to use the two years' apart from his or her spouse as "separation" for the purposes of the Divorce Act unless he or she considered the relationship to be over at some point during those two years and told his or her spouse just that. Click here to go to the top of the page. Does BC recognize a virtual separation? (by M of Chilliwack, BC) No. Neither the laws of Canada or British Columbia recognize a "virtual separation," and quite frankly I'm not sure what tyou mean by that. The separation must be emotional, physical and intentional. Click here to go to the top of this page. My husband and I are separating, and we don't have any children or property. Do we still need to sign a separation agreement that could be used as an official document? (by T of Burnaby, BC) There's no magic to a separation agreement, and there's certainly no "official document" required for you to separate. You just end the relationship and you're separated. Separation agreements can be very handy if a couple need to resolve issues relating to children and property. While you and your husband don't have to deal with those problems, you may still want to complete an agreement to deal with spousal support. In essence, the one meaningful clause of your agreement would say something to the effect that you each give up any right you might have to claim spousal suppport from the other. Unless there are some other issues lurking in the weeds that you haven't mentioned, like dealing with family debts, that would seem to be about it. Click here to go to the top of this page. My husband has agreed with me that it is time to seperate but beyond that won't talk about how we go about it. He just keeps saying "take care of it." What do I do? He won't even discuss a seperation agreement or anything else and meanwhile living together is getting difficult. We have 3 children (16, 14 and 12). We own a house but he has given a substantial part of our assets (money, jewellery) to his parents who refuse to give it back. I don't want to make the wrong step. Even the children want him out of the house. Where do I start? (by J of Vancouver, BC) I suspect that you're not talking about separating from your husband, you're probably talking about how to resolve the issues between the two of you, which seem to include the care and control of the children, the division of the family assets and so forth. It seems to me that you've likely already "separated" for the purposes of your divorce since you both agree that your marriage is at an end. A couple can be "separated" while living under the same roof, so long as they're sleeping in separate beds and doing separate chores and otherwise behaving as if the marriage is over. Now, how do you go about dealing with these issues? It would certainly be helpful if your husband would get his butt in gear and talk to you about his position. If he won't do that, I'd suggest that you go and hire a lawyer to prepare a proposal. The proposal ought to deal with all matters that are at issue between the two of you, and, while your husband probably won't accept the proposal, it can be used as a basis for future discussions and will force your husband to talk about these things. You should also see a lawyer to, at the very least, get an idea about what your options are. Click here to go to the top of this page. My husband and I have been legally separated for two years and have been living together the past two years. We want to legally confirm our continuing relationship. Do we have to get remarried or renew our vows? (by R of Coquitlam, BC) If by "legally separated" you mean that you and your husband have a separation agreement, you have a few choices. You can rip up all the original copies of the agreement and declare that you no longer consider yourselves bound by the agreement, or, you can modify the agreement to become a marriage agreement. In the even that your relationship ends, this way you can preserve some of the effort and cost that went into the preparation of the original agreement. If you have no separation agreement and you're not divorced, well, hell, you're still married. You can simply resumed married life. Unless there was an actual divorce order, you're still married. There really isn't any such thing as a "legal separation." You can renew your vows if you wish, but it isn't necessary. Click here to go to the top of the page. Site Navigation
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