THE CONCEPT OF “SEPARATE AND APART”


The majority of divorces in Canada are granted on the grounds of the parties having lived “separate and apart” for one year. We regularly receive questions from our clients about what exactly this means, and with good reason; it is a more complicated concept than it seems at first glance.

As lawyers, we are required to confirm that you and your spouse have, in fact, been living separate and apart for a minimum of one year. In order to meet the requirements of the Divorce Act, two aspects must be present:

1. Physical Separation, and
2. Intent to withdraw from marital consortium.

Here’s where things get complicated: “Physical separation” doesn’t necessarily have to mean that you are living in separate residences. Over the years, courts have determined that a husband and wife may be living under the same roof yet still be living separate and apart. Where a couple is still cohabiting, they must be able to show that:

1. They have withdrawn from matrimonial obligations with the intent of destroying matrimonial consortium, and
2. They are physically separated.

Courts will consider the following aspects in determining whether these requirements have been met:

1. Spouses occupy separate bedrooms
2. Absence of sexual relations
3. Little, if any, communication between spouses
4. Wife performing no domestic services for husband (and vice versa)
5. Eating meals separately
6. No social activities together

At the same time, if spouses are living in separate residences and are operating as husband and wife (for example, eating meals together or carrying on a sexual relationship), the intent to withdraw from marital consortium requirement will not be met.

And remember, any formal or informal reconciliation (including any of the above factors) during the one year separation period re-sets the clock and the year starts over.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

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