Legal Separation: What to Consider When Living Separate and Apart in the Same Residence

In these tough economic times, many married couples may want to separate – but find they simply can’t afford to. That’s because they may not have the financial means to set up two separate homes, and officially start down the road toward getting a formal divorce from each other.

A question we often get asked at our firm is whether, under Canadian law, it’s possible to be legally separated but still continue to live under the same roof.

The answer is “Yes” – but it takes a concerted effort to ensure the required thresholds are met. Without a clear plan to live separately in the same household, your official date of your legal separation can be uncertain and it may be an issue in the future when determining the property/support issues.

What the Law Says

In Canada, the federal Divorce Act sets out the eligibility criteria for getting a divorce. One of them is simply that you and your spouse must be living “separate and apart” for at least one year.

Fortunately, there’s nothing to say that you can’t meet this legal threshold while still living under the same roof. But it will depend on whether your living situation would satisfy a court that you have each withdrawn from the mutual assumption of rights, duties and obligations that are normally seen in a married couple, and desire to permanently sever the matrimonial connection. When a court at your facts to makes this assessment, it will assess a host of factors; no single one is determinative.

Here’s What to Do

If your financial or other circumstances preclude you from arranging for separate residences, here are some of the ways you and your spouse can help show that you are legally separated, even though you technically still live together:

• Draft a separation agreement, and include a stated separation date. (And get the help of an experienced Family Lawyer to do this). This legally binding contract will help solidify a formal separation date, and will also outline your mutual understanding around the terms of your separation. Ideally, this includes all the day-to-day matters such as property division and support.

• Maintain separate living quarters. If possible, have one of you move out of the shared bedroom, to go live in different areas of the house.

• Maintain separate lives. Shop for your own groceries, and cook your own meals independently. Don’t share meals. Each of you should clean your own separate area of the home, and create a formal agreement around how shared areas will be maintained.

• Untangle your financial affairs. Mutually close any joint bank accounts and credit cards, and set up individual ones instead. Make separate payments towards household expenses. Keep all your finances separate, going forward.

• Unravel your social and family lives. Officially announce your separation to your family, friends, work colleagues, and your religious community. Avoid attending extended family gatherings or work events together. Take vacations separately, even the ones you take with your children. Socialize separately. Avoid celebrating holidays mutually, and don’t exchange tokens of affection or gifts with each other.

• End the sexual and intimate relationship. Stop sharing your day-to-day lives with each other, including health and personal issues. Don’t take any steps to try to reconcile, if your relationship is truly over. Stop having sex with each other. Start dating other people, when the time is right.

• Start getting ready for your divorce. Consult your own separate Family Lawyers. Declare yourselves as “separated” on your Income Tax forms and other official documents. Change your life insurance policies and Wills, to delete each other as beneficiaries.

It’s important to emphasize that to qualify for a divorce under Canadian law, you and your spouse must be living both “separate” and also “apart” – which refers to a concerted effort to cut the physical, emotional, financial and intimate connection between you. When financial or other reasons keep you both living under the same roof, it can be more challenging – but it’s certainly not impossible. Give our offices a call, for some advice that is tailored to your situation.