What is My Date of Separation?

Your date of separation marks the end of your marriage or common-law relationship. It is important to keep track of this date because it affects your rights to the division of family property, family debt, child support, and spousal support.

 The following article will guide you through determining and proving your date of separation and explain why this date is significant.

How do I determine my date of separation?

 In BC, spouses are considered separated if one or both people decide that their relationship is over. Spouses do not need to mutually agree to separate. Nor do spouses need to move out to be separated. All that matters is that one spouse communicates their intention to end the relationship and then acts in a manner consistent with that decision. This typically involves ceasing to engage in activities that signify a couple, such as sleeping, eating, or performing household chores together.

 The Family Law Act sets out some considerations to determine whether a couple has separated. Section 3(4) of the Family Law Act states:

 a.      Spouses may be separated despite continuing to live in the same residence, and

b.     The court may consider, as evidence of separation,

i.                    Communication, by one spouse to the other spouse, of an intention to separate permanently, and

ii.                  An action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

What happens when my spouse and I cannot agree on our date of separation?

In some cases, the date of separation may not be clear. This is particularly true for spouses who continue to live under the same roof or experience periods of reconciliation post-separation. Disputes may also arise over the exact date of separation, with one spouse potentially manipulating the date to increase his or her value of the family property or to reduce his or her responsibility of the family debt.

In such cases, the courts will examine various factors to establish the date of separation, including:

·         Whether you file taxes jointly and have integrated finances

·         Whether you sleep in the same bed

·         Whether you engage in sexual relations

·         Whether you take vacations together

·         Whether you attend social events together

·         Whether you visit each other’s family

·         Whether you celebrate special occasions together

·         Whether you prepare and eat meals together

·         Whether you share household chores as you did while you were a couple

·         Whether you support each other during crises

·         Whether you present yourselves as a couple to family and friends

·         Whether you are planning a future together

·         Whether you attend relationship counseling

 If you have stopped doing most or all of these activities, the court is more likely to determine that you are separated.

Why is the date of separation important?

 The date of separation is important in family law because it affects various limitation periods. For example, one way to get a divorce in BC is by living separately and apart for at least one year. Section 8 of the Divorce Act provides that “[a] court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.” Breakdown of a marriage can be established “if the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding.”

 Additionally, the date of separation starts the clock for unmarried spouses to make a claim for the division of property and debt or spousal support. Section 198 of the Family Law Act states that spouses in a common-law relationship must initiate a proceeding for an order to divide property and debt or for spousal support within two years from the date of separation. This time limit is shorter than that for married spouses, who have two years to start a court proceeding for the division of property and debt or spousal support starting from the day their divorce is granted or the day their marriage is annulled.

 The date of separation is also relevant for the purpose of dividing family property and debt. Section 81 of the Family Law Act provides that “[s]ubject to an agreement or order that provides otherwise and except as set out in this Part and Part 6, spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common and is equally responsible for family debt.” This means family property (such as bank accounts, RRSPs, and pensions) and family debt (such as mortgages, loans, and income tax) are shared equally upon separation, unless there is a pre-nuptial agreement, marriage contract, or any other agreement that says otherwise.

 Note that unlike family property, excluded property is not divided equally between spouses when they separate. Excluded property includes things like property acquired by a spouse before the relationship between the spouses began, gifts and inheritances given to a spouse, and some types of damage awards (see section 85 of the Family Law Act for a comprehensive list of excluded property). While the excluded property itself is not subject to division, any increase in its value during the relationship is considered family property and must be divided equally. For instance, if you owned a house valued at $700,000 before living with your spouse, and its value rose to $900,000 during your relationship, you would retain the original $700,000, while you and your spouse would equally split the additional $200,000 increase in equity.

 Whether you are legally married or in a common-law relationship, it is important make a note of the date that you and your spouse separated. This date determines eligibility for divorce, time limits for claims, and affects the division of family property and debt. By understanding the criteria and considerations for determining the date of separation, you can ensure that your rights and interests are protected during this significant transition.

 If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.