Determining If You’ve Separated from Your Spouse

How does the Court determine if a couple has separated if they’re still living in the family home together?

This is a complicated issue that can have blurred lines. The law recognizes that it may not be feasible for one partner to move out of the family home immediately following separation. There can be financial constraints, as well as lack of available housing and other factors that make it so the separated spouses are still living together. The Courts do take various factors into consideration when determining if a couple has separated or not that include:

1. Living Arrangements. The Court will look at what the living arrangements were and if the parties were sharing a bedroom and how the space within the home was being used by the spouses. Couples can be separated but still living under the same roof with separate sleeping spaces. The Court will also look at the reasons why a couple was sleeping separately, as there are intact couples who choose to have separate bedrooms.

2. Social. The Court would also consider whether a couple held themselves out to the world to be a couple. Whether the couple socialized together is a factor the Court will consider. This could include attending community events and family gatherings together. Examples of this are attending a family Christmas party or going out for dinner at a restaurant in the community to celebrate their anniversary. These events being attended together could be viewed by the Court as a couple being together even if one says they were separated.

3. Physical Intimacy. Physical intimacy is a factor that can be considered by the Court. Whether a couple is physically intimate is not determinative of whether the Court will consider them in a relationship or not but is a factor that can be considered.

4. Acts of Service. Another factor to be considered is whether a couple is doing domestic tasks for one another. These would include cooking meals for one another, caring for the other if they are ill, doing household chores for the other and other domestic related tasks. For example, if you continue to cook meals for your ex-spouse or do their laundry it could be considered a reason to find that you were still a couple.

5. Other factors. The Court will also consider acts like giving the other gifts and cards for holidays and occasions, utilizing the other partner’s health benefits, whether your family and friends were aware of the separation, and financial interdependency.
   

The above list is not exhaustive.

The clearest way to identify if your separation has occurred is to put it into writing. This can be done by one partner sending the other a text message or email stating that they want to separate, and then acting as separated spouse. Both parties do not have to agree to the separation, but one party does need to establish that the separation has occurred. There have been instances where parties have had very different opinions on what their date of separation is, and this is an issue that can lead to litigation if a date of separation is not agreed upon.