When am I Legally Separated?

One question that I am often asked by my clients is “When am I legally separated?”

People often wonder if they require a signed contract or a Judge’s order to confirm that they are separated from their spouse or partner.  The answer, in most instances, is that there are no formal requirements in order to be separated and that a person is separated when that person (or that person’s spouse or partner) decides that they want to be separated.

However, like many issues in family law, there are different rules for married couples and common-law couples (or adult interdependent partners).  For married couples, the laws that apply are set out in the Divorce Act of Canada.  This act deals with child custody, child support and spousal support, but also sets out the mechanisms that allow a Court to grant a divorce, and it is here where we find the definition of legal separation for married people.  In Canada, parties may only be divorced if they have lived separate and apart for more than one year.  The Act goes on to define this separation as being any period when the parties have lived separate and apart and have intended to live separate and apart.  Essentially, people are deemed to be separated when they live apart and when at least one spouse wants to be separated.  There is no court order required, and no one needs to sign a contract or agreement.  Any spouse can decide for him-or-herself when he or she is separated.  The parties will, however, still be legally married until they obtain a Judgment granting their divorce.

It should be noted that parties do not need to live in separate residences in order to be legally separated.  Parties can live under the same roof and be separated if they intend that they are no longer living together as “spouses.”  The facts that can lead to a finding that parties were separated but still living together can vary from case to case, but generally this would be a situation where the parties had separate bedrooms and were otherwise not carrying themselves as a couple, but for some reason still shared a home.  Such reasons may include the spouses’ finances or may be related to the care of children.

Adult Interdependent Partners

For common-law couples – a term which is often used to describe both Adult Interdependent Partners (people who have lived together in a relationship of interdependence for at least 3 years, or a lesser time period if the parties have children) and those who live together but do not fit the definition of Adult Interdependent Partners-  the Divorce Act does not apply and we need to instead look at the provincial legislation.  In Alberta, the two pieces of legislation we look at are the Adult Interdependent Relationships Act and the Family Law Act.  If parties have lived together for a period of less than 3 years, and they have no children together, they are separated (and the relationship is over) when they decide they want to be separated.  There are no formal requirements, and the parties can continue to reside in the same residence if they so choose.  However, if the parties continue to live together and have a different idea as to the status of the relationship (ie whether or not they are still in a romantic relationship) it can make it difficult for a Court to rule on the date of separation if required down the road.

For Adult Interdependent Partners it can be a bit more complicated, as even though the parties are not married and therefore do not require a divorce, several acts set out the concept of “Former Adult Interdependent Partners,” and this concept does not apply automatically upon living separate and apart (as it would if the parties had lived together for less than 3 years).  To become a Former Adult Interdependent Partner, a person may do one of the following:

• (a)    enter into a written agreement that provides evidence that the partners intend to live separate and apart without the possibility of reconciliation;
• (b)    live separate and apart for more than one year and one or both of the partners intend that the adult interdependent relationship not continue;
• (c)    marry a third party;
• (d)    enters into an adult interdependent partner agreement with a third party;
• (e)    obtain a declaration of irreconcilability under section 83 of the Family Law Act.

A declaration of irreconcilability is an order from the Court setting out that the parties have no possibility of reconciling.

It may be difficult to determine which of the above applies to your situation.  If you are unsure how to proceed, please contact a family law lawyer with Capital City Law today.