When couples separate, determining a “date of separation” is required to establish a year of separation as grounds for divorce, or an entitlement date for pension division, among other things.
The Divorce Act, section 8, sets out the conditions for a separation where the grounds for divorce are one year of separation. One of the spouses must have an intention to separate permanently, usually by way of a physical departure (moving out while informing the other partner that “it is over” or words to that effect). Sometimes the parties opt to remain under the same roof temporarily for financial or other reasons until a physical separation is possible, in which case the separating spouse must take steps that are consistent with separation (starting the process of disentanglement such as not cooking, cleaning, shopping or doing laundry for the other spouse, opening separate bank accounts, and not incurring debt in the name of the other).
In some cases, it may be necessary for the separating spouse to clarify the date of separation by having a letter served upon the other spouse to confirm his or her intention to separate permanently from a certain date. In other cases, where the parties reach agreement about a separation, it may be adequate for the date of separation to be set out in a Separation Agreement by agreement.
The Divorce Act, subsection 8(3), provides that spouses may attempt a reconciliation for up to 90 days without disturbing the stated date of separation. If a reconciliation continues for more than 90 days, the parties are not considered to have separated permanently.
In the collaborative process, your collaborative lawyer (and your spouse’s) will provide advice on your specific circumstances and the effect the date of separation may have on your Separation Agreement.
Written by Lisa Dewar (Collaborative Lawyer)