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Spouses are ‘separated’ when one person in the relationship has withdrawn from the relationship without any reasonable prospect of reconciliation or resumption of cohabitation.

This means that you can be married and separated at the same time. In fact, in almost all cases, you have to have been separated from your spouse for at least one year before you can divorce.

What is the Significance of Separation

Once you and your former spouse are separated you may have to deal with custody and support issues. If you were married, you and your spouse are also entitled to an equalization of net family property.

The main reason that the date of separation can be contentious is that the date of separation is also the valuation date which impacts married spouses’ net family property, and therefore impacts the equalization payment. Generally, after the date of separation, any increase or decrease in assets or debts does not affect the equalization payment.

How do I know if I’m separated?

Often, there is one defining moment or conversation that makes the date of separation clear to both you and your spouse. On the other hand, sometimes, the date of separation, the date you and your spouse separate, can be difficult to determine. You can live together and still be separated. If you and your spouse disagree about the date of separation there are multiple factors which are used to determine the date of separation.

They include:

  • Conversations, statements and any written conversation between spouses with respect to separation;
  • Are you sharing a bedroom;
  • Are you having sex;
  • Are you and your spouse communicating regularly and discussing family problems;
  • Is one spouse still providing domestic services, like cooking, cleaning, laundry etc. for the other spouse;
  • Are you eating meals together;
  • Are you attending social activities together?

Once separated, you and your former spouse can enter into a Separation Agreement, which can resolve all the issues which have arisen as a result of your separation. This can include resolving issues such as custody of children, child support, spousal support and equalization.

What is the significance of a Divorce?

A divorce legally ends the marriage and allows former spouses to remarry. This is the most significant aspect of divorce. A divorce may also impact you or your former spouse’s ability to remain a beneficiary of your health insurance benefits or pension benefits. The granting of a divorce also changes your former spouse’s entitlement to share in your estate should you die without a Will.

The court will not grant a divorce if no reasonable arrangements have been made with respect to children of the marriage. This means that if you do not have an agreement or court order that deals with custody and child support for the children of your marriage, the court may not grant a divorce.

You should see a family law lawyer if you are considering a divorce, or if your former spouses is seeking a divorce and you have concerns with respect to these issues.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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