Am I Legally Separated?

By Monica McParland
Categories: Blog, Family Law

When meeting new clients one of the most frequent questions asked is: Am I legally separated?

At the end of a marriage or common law relationship, typically one spouse moves out of the family home. However sometimes the parties will keep living under the same roof for financial reasons or to make it easier for the children. Under the law in BC a physical separation is not required so long as there is clear intention to end the relationship. This intention can be shown by opening separate bank accounts, sleeping in separate rooms, separately performing household chores, and stopping socializing together. The decision to separate may be mutual but it does not need to be.

Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, I recommend my clients record the date separation occurred and send an email to the other spouse confirm the separation date.

It is important to note that under Canadian income tax laws, parties are required to live separate and apart for 90 days before they will be considered separated. Once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

Under the Family Law Act the date of separation is a very important date for married and common law spouses because the separation date is the date that:

  • each spouse’s one-half interest in the family property crystallizes,
  • the spouses stop accruing family property and debt and begin accumulating their own personal property and personal debt,
  • starts the limitation period within which common law spouses must apply for division of family property and debt (for married spouses time runs from the date of the divorce),
  • starts the limitation period within which common law spouses must apply for spousal support. (for married spouses time runs from the date of their divorce).

My clients often ask me to obtain a “legal separation” for them. In British Columbia there are no special legal documents to file in court and there is no such thing as a “legal separation.” Separation is achieved by one spouse clearly communicating their desire to be separated and when the spouses begin acting separated. However what most people really mean is that they want a “separation agreement”. A skilled family law lawyer will assist in negotiating a resolution of the legal issues arising from the breakdown of the relationship and drafting a Separation Agreement.