Living "Separate and Apart" – Were You Living Together in the First Place?

A while ago I wrote an article about the family law concept that former partners can live “separate and apart” and yet still live under the same roof.   (This is an important threshold to meet, because the federal Divorce Act requires a specified period of living separate and apart before a divorce will be granted).

But it is important to remember that there is a flip-side of the equation as well:  before a court will determine whether a couple are separated at any given point, the court must first determine whether they were cohabiting in the first place.

A court will make this determining by looking at the nature of the pre-separation relationship.    But this can be particularly challenging where the partners – though ostensibly living “together” – nonetheless kept their own separate residences.    In this context a court will first consider why those separate residences were maintained, and then will also look various additional factors.  In particular, the court will consider whether, prior to the split, the partners:

• Financially supported each other
• Shared their assets
• Ate meals together
• Left personal items at each other’s homes
• Performed services for one another
• Attended social functions together
• Celebrated special occasions together
• Helped each other out during difficulty times
• Were sexually intimate
• Were sexually faithful to each other

The court will also examine factors such as how the partners were viewed by outsiders, and how they referred to themselves on official documents such as income tax returns, legal forms and documents, and wills.

Do you have questions about whether you have been cohabiting with someone to the extent required in law?  Or do you have questions about whether you are legally separated from your partner?  Contact us for a consultation.