“I want to separate”. These are often some of the most difficult words to say to someone who is your partner or spouse.
What does it mean to say you have separated? Can you be separated and still living in the same home? Are you considered separated for family law purposes? This earlier blog post explains the difference between separation and divorce, but this post focuses on separation.
These are only a few questions that come up. From a family law context, the date of separation is an important one that needs to be established. This is especially true for married couples, where the date of separation is an important marker for property division and divorce itself. For both common law spouses and married spouses, the separation date is also often the start date for support for children and/or a spouse.
Often, the clearest indicator of separation is one partner leaving the home. However, what happens if parties are still living in the same home? Parties can be separated even though they live in the same home.
To determine if couples are separated, especially if they are still under the same roof, the case law has developed a number of factors that have to be considered. These include the following:
- Physical separation – the clearest example of this is someone having left the home;
- Intimate relations – not conclusive, but are a factor;
- Communication between spouses/partners – if you don’t talk to each other, or only talk about your child(ren), this could be a contributing factor;
- Meal patterns – partners who still cook for each other, buy groceries for each other or eat their meals together give the appearance of still being together;
- Household tasks – are these still being shared, or is each person doing their own dishes and laundry;
- Intentions – how you file your taxes (separated or not) is an indicator of your intention to be separated. Whether or not you have told friends and/or family that you are separating is also an indicator of your intentions;
- Social factors – if you are still presenting yourselves as a couple or are you attending social gatherings together, this can also lead to drawing conclusions that you are not yet separated.
It is enough for one partner to say they want to separate, but again, factors like those above help solidify this kind of claim.
What if you reconcile? It’s not uncommon to hear that couples try to give their relationship another chance after they have separated. If you start living together again for the purposes of reconciliation and then decide to still separate, your original separation date would apply but only if your cohabitation period was less than 90 days. If you pass 90 days and then separate, then this second date would be your new separation date.
Ultimately, the separation date is something the two of you have to both agree with. Reconciling can make this trickier to agree to, but the factors above can assist.