This article is part of a series of educational blog posts created by a team of Watson Goepel women lawyers in light of International Women's Day 2023,to empower, celebrate, and encourage women in Canada.
Separation vs Divorce
According to the Divorce Act, a breakdown of a marriage may be established when you and your spouse have 'lived separate and apart' for at least one year. In other words, you may begin the legal process of obtaining a divorce order on the day that you separate from your spouse, although an actual order for divorce will not be granted until one full year has passed from the date of separation.
Therefore, if you want a timely divorce process, it is critical to be clear on what date a legal "separation" occurred.
Yes, You May Be Considered Legally Separated from Your Spouse While Living In a Shared Home
A common misconception is that a couple may only be considered 'separated' once they live in separate homes. In truth, you may be considered legally separated from your spouse even while you remain living together in the same home. A falling housing market, high-interest rates, and dynamic family structures are factors leading to more couples separating but continuing to live in a shared home.
If you are in a marriage where it is not possible to move into separate homes, but you want to start the divorce process, it is imperative to demonstrate an intention that the separation between you and your spouse is permanent. Subsection 3(4) of the Family Law Act, the guiding legislation of family law in British Columbia, confirms that spouses may be separated despite continuing to live in the same residence and the Court may consider communications between spouses and actions taken by them as evidence of their intent to separate.
Proof of Intention to Separate
The courts will review communications and actions between spouses to establish whether there was an intention to separate. This intention must be communicated and acted upon by at least one of the spouses to trigger a separation (in other words, it does not require that the spouses both agree to and both communicate an intention to separate).
Communicating a clear intention to separate in writing is important! Some channels through which you may communicate an intention to separate to your spouse may be by written letter, email, or text message. It is important to always keep a record of significant communications when separating from your spouse.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
