Legal Separation: What is it and how do you get one?

Some of the more common questions I receive in my family practice revolve around the issue of obtaining a “legal separation”.

The issues related to marriage, separation and divorce in the Province of British Columbia are governed by the federal Divorce Act the provincial Family Law Act.  Under these laws, there are no forms to fill out, nor is there any necessity to get lawyers or the courts involved, in order for a married or common-law couple to become separated.  In short, there’s no “legal separation” to “get”.

In BC, a couple is considered to be separated as soon as the two start living separate and apart with the intention to separate permanently.

As referenced above, separation in BC involves two components: a physical separation and the recognition by one of the parties that the relationship is at an end.  A joint intention to separate is not required.

Physical Separation

Physical separation is often easiest to pin down to a specific date as it is often when one of the party’s vacates the shared residence at the time of separation.  However, for various reasons (most commonly economic necessity), one party immediately leaving the residence upon separation is not always an option.  Parties can live “separate and apart” under the same roof provided that one or both parties have shown their intent to end the relationship.

One of the most common factors considered in determining whether parties are separated under the same roof is whether the parties occupy separate bedrooms.  Other factors include absence of sexual relations, little, if any, communications between the parties, eating meals separately, no longer doing social activities together and how the parties portray themselves to others.

Intent to Separate Permanently

Pursuant to the BC provincial Family Law Act, the court may consider as evidence of separation communication by one party to the other of an intention to separate permanently, or an action taken by a party that demonstrates that party’s intention to separate permanently.  Unfortunately, the parties may not agree about when the “intention” was conveyed to the other and this can result in parties disagreeing about the date of separation.  Typically this “intention” is communicated verbally and as such, when the parties disagree on the date, there may be little to no evidence to support their position.

One way to help avoid any confusion about the date that intent was conveyed is to follow-up your verbal communication of your intention to separate with something in writing.  An email or text message saying something along the lines of “further to our conversations earlier today it is my intention to permanently separate from you” could prove helpful in pinpointing a specific date should the parties be unable to agree.

Pinning down a specific separation date is important as, under to the Divorce Act, the parties must have lived separate and apart for at least one year in order to get a divorce (there are exceptions to this in cases of adultery as well as physical or mental cruelty).  The separation date can also be an important factor with respect to the division of property and spousal support.

Separation is more than just starting to live separate and apart.  Assets and debts also need to be separated, and the issues of spousal support, parenting plans and child support need to be considered. If you are recently separated or considering separation, it is prudent to seek legal advice, and we can help.  Please contact us to arrange for a consultation with one of our family lawyers.