Can You Live “Separate and Apart” Under the Same Roof? – Some Points to Know

In a prior “Divorce in Ontario:  Frequently Asked Questions” post, I have written about the requirement, in advance of a divorce, that you and your Ex must have been living “separate and apart” as of some ascertainable date.  This legal “separation date” important in your subsequent divorce because (among other things) it is a baseline point in the broader calculation that is made in order to divide up your assets.

But in difficult economic times, and particularly when you are at the point where you will be untangling your finances in the near future, it may be too costly for one of you to find a new place and move out. For this reason, it is increasingly common that couples separate in a legal sense, but try to remain living under the same roof until their financial situation makes it possible to make a cleaner break pending their divorce.

I pointed out that a court will generally look for several key combined factors and criteria that collectively suggest that you and your Ex have essentially been living separate lives, both romantically, socially and financially.  Needless to say, there can still be a lot of gray areas, particularly where there are children involved.  Still, here are some additional points to know:

• The requirement under the Divorce Act has two parts; you must be living 1) “separate” and 2) “apart”.  This means there must be both a withdrawal from the marital obligation – with the intent of destroying the matrimonial connection — and there must also be a physical/emotional/psychological/financial separation and a desire to be apart.  Both must be present at the same time, and the mere fact that you and your Ex are still living under the same roof does not mean that you cannot be separated for the purposes of your upcoming divorce.
• “Separate and apart” is partly a state of mind.  Generally speaking, you and your Ex should both feel that you have withdrawn from each other even though you may still be living under the same roof.
• The decision to live separately can take place by way of a specific agreement, by mere acquiescence, or through the mutual recognition of the changed conditions between you.
• The state of living “separate and apart” continues until – again by mutual intention – you and your Ex resume living together as husband and wife.

Are you still living together but consider yourself legally separated?   We can provide you with tailored advice to make sure you meet the legal requirements.   Contact us for a consultation.