Ask A Lawyer – Am I Legally Separated?

As a divorce and family law lawyer, I am often asked by clients whether or not they are legally separated.  When two people who have been living together as a married couple or in a marriage-like relationship (in the case of common-law spouses) cease living together, they are separated.  There is actually no such thing as a “legal separation”.

The issue of living separate and apart is an important one for married spouses, as living “separate and apart” for one year is grounds for divorce under the Divorce Act.  From time to time, spouses cannot afford to keep two separate residences, as they may have limited funds or their house may be for sale.  In those cases, if there is a decision to live separate and apart, people can actually be “separated” but still live under the same roof.  To satisfy the test of being separated, those spouses generally lead separate lives, do not share a bedroom, do not go out in public as a couple, and for all intents and purposes, while they may co-exist under the same roof, there is no intention to live together in a marriage or marriage-like relationship any further.

I think that most people, when asking about getting a “legal separation”, are wanting a Separation Agreement.  A Separation Agreement is a contract between two spouses which sets out how they are to parent their children, whether there are any child support or spousal support obligations between the spouses, and how their assets are being divided.  If one spouse is paying spousal support to the other, a written Separation Agreement or Court Order is required before a spouse can deduct those spousal support payments from his or her taxable income.  Most well-drafted Separation Agreements are fairly detailed documents, as they set out provisions for parenting plans, details of how children’s expenses are to be shared, and the property provisions provide for transfers of real property, roll-overs of investments, life insurance obligations and provisions regarding any shares or companies that either or both spouses may own.  I advise people not to try drafting their own agreements and not to buy a Separation Agreement kit from a bookstore or off the internet.  It is far more expensive for a lawyer to fix a botched agreement than it is for that lawyer to prepare a proper agreement at the outset.

One of the most important aspects of a good Separation Agreement is full financial disclosure by both spouses in advance of the negotiation of the agreement.  A British Columbia Supreme Court Judge once said that lack of disclosure in family law cases is the “cancer” of matrimonial litigation.  If an agreement is negotiated without full financial disclosure, or if assets or income are not properly disclosed, an agreement can be set aside by the Supreme Court on application by either spouse.  There are court rules in effect that set out the type of disclosure that is necessary, and I highly recommend against anyone entering into an agreement unless they are fully informed as to the other person’s income, assets and liabilities, and as to their prospects for earning more income or acquiring further assets.

In terms of process, once spouses have been living separate and apart for one year, and have their legal issues resolved by way of a Separation Agreement, either spouse can apply for a divorce.  Typically, if all issues, save for the divorce, are resolved in their Separation Agreement, one spouse will apply for a Divorce Order only.  They must have their spouse served with the Notice of Family Claim, but the spouse served often does not file any responding materials and allows the divorce to proceed on an uncontested basis.  It is always advisable, if you are served with a Notice of Family Claim seeking a divorce, that you get legal advice within the time period prescribed by the Rules.  The decision as to whether or not to oppose a divorce is best done with the assistance of an experienced family law lawyer.

If you have any questions regarding any issues set out in this article or need assistance with any family law problem, please contact Pushor Mitchell Lawyers.

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