In Canada, before it can be said there has been a breakdown of a marriage sufficient to warrant divorce proceedings. the federal Divorce Act stipulates that parties must be living “separate and apart” for a certain period of time. Similarly, in Ontario, the Family Law Act provides that for spouses who are about to embark on the process of equalizing their property upon marriage breakdown, their separation (for valuation date purposes) is “the date on which the spouses separate and there is no reasonable prospect that they will resume cohabitation.”
Of course real life is not always clear-cut. Spouses may decide to separate but one or both may still harbour hope of reconciliation, and may have periods of time where they resume living together on a trial basis. Or possibly due to tougher economic times, even high-conflict couples with a settled intention to divorce may have to tolerate shared living arrangements much longer than they would ideally prefer to, usually in order to save money.
So, according to the Divorce Act which requires living “separate and apart”, when are spouses considered to have formally separated so that they are eligible to divorce? Unfortunately, there are no firm rules. Instead, courts will look on a case-by-case basis at the whole of the relationship between the parties, and consider not just living arrangements, but also financial commitments, social and child-related interactions, sexual activity and how the couple presents themselves to friends, family and the public.
However, previously decided court cases themselves can provide some guidance on some noteworthy points such as the following:
- The requirement for living “separate and apart” involves not only physical separation, but also recognition by at least one of the parties that the marriage has broken down to the point where it is considered to be over (Memisoglu v. Memisoglu)
- The use of the word “and” in the term “separate and apart” is meaningful; there must be both a physical separation, together with a withdrawal from matrimonial obligations with the intent to end the marriage (Rushton v. Rushton)
- However, there is no requirement that both parties must consider the marriage to have ended. Nor is it required that both parties intend to live “separate and apart:” (Memisoglu v. Memisoglu and Mosset v. Mosset)
- If a couple lives apart for short, or even long, periods of time but neither take any steps to indicate a clear intent to end the marriage, a court may find the marriage is still continuing: (Coates v. Coates)
- Similarly, parties can mutually intend to continue the marriage despite being physically separated for long periods of time (Lachman v. Lachman)
- The reason for the physical separation is also relevant: one spouse may be posted to a job overseas, may be incarcerated or may be living elsewhere for medical reasons. This does not necessarily meet the test for living “separate and apart” if the intent to end the marriage is absent (Compton v. Compton and Rushton v. Rushton)