Understanding the Date of Separation: Why It Matters

When a couple makes the difficult decision to separate, one of the earliest and most important questions they must answer is: When did we separate?

While this might seem straightforward, the answer can be complex, especially if the spouses continue to live under the same roof or have an inconsistent relationship post-breakup. In Alberta, the "date of separation" carries significant legal weight. It affects everything from eligibility for divorce to timelines for filing property and support claims, and even determines which legislation applies to the division of assets.

Why Is the Separation Date So Important?

The date you and your partner are considered to have separated can significantly affect your legal rights and obligations. One important area this impacts is divorce eligibility. Under section 8(2)(a) of the Divorce Act, spouses must live "separate and apart" for at least one year before commencing a proceeding, unless other specific grounds, such as adultery or cruelty apply.

The date of separation plays a key role in determining deadlines for filing family law claims. Many claims, including those for property division and spousal support, are subject to time limits. For example, under Alberta’s Family Property Act, most claims must be filed within 2 years of the date of separation.

The law may differ depending on when the separation occurred. If a couple separated prior to January 1, 2020, the former Matrimonial Property Act may apply. For couples separating on or after January 1, 2020, the Family Property Act governs. These laws differ in how they address property rights and adult interdependent relationships, which can significantly affect the outcome of a family law matter.

What Does It Mean to Be Separated?

Separation does not necessarily require one partner to move out of the family home. A couple may be considered separated even while living under the same roof, as long as certain conditions are met. The key factor is the intent to end the relationship, rather than simply living physically apart. Courts consider various factors to determine whether a separation has occurred. These may include sleeping in separate rooms, ending sexual or romantic involvement, no longer sharing meals or household responsibilities, dating other people, making changes to financial arrangements, how the couple presents their relationship to others, and whether either partner has sought legal advice or initiated legal proceedings related to the breakup. One spouse's intent to end the relationship is enough, even if the other disagrees.

Living Together After Separation: What Factors the Courts Consider

In Savoie v. Lambert, a husband and wife who married in June 1993 continued living together for years after their marriage broke down. The husband claimed they had separated in 2011 when he moved to the basement, however, it was not until 2016 when he moved out of the family home entirely.

The court ruled that the couple had legally separated in February 2012, despite still sharing a home. The court’s reasons for this decision was based on the fact the parties no longer spent time together or shared responsibilities, the husband was romantically involved with others, the parties had emotionally and physically disconnected, the wife stopped performing domestic tasks for the husband, and their decision to remain in the same house was based on waiting for their youngest child to leave for university.

Although their finances were still intertwined, and shared tax services, the court found that these factors did not override the other evidence showing a clear marital breakdown.

Final Takeaways

Determining the date of separation is not always black and white. It requires looking at the full context of a couple’s relationship and living situation. If you are unsure whether you have officially separated, or if your partner disagrees on the timeline, please contact Stokes Law LLP to book a consultation to speak with our family lawyers about your situation. 

Accurately establishing your date of separation can make a difference when it comes to protecting your rights, filing timely claims, and securing a fair outcome in divorce proceedings.