Date of Separation? What is it? Why does it matter?

Date of Separation? What is it? Why does it matter?

Date of Separation? What is it? And why does it matter?

Under BC’s Family Law Act, the date of separation has importance significance for married and unmarried spouses. At the date of separation, you and your spouse each become:

  • entitled to half of all family property – regardless of whether the property is in joint names or in your name only or your spouse’s name only.
  • responsible for half of family debts – regardless of whether the debt is in joint names or in your name only or your spouse’s name only.
  • responsible for paying spousal support and/or child support from this date to the other.

Post-separation date note

  • Any property either you or your spouse acquire after the date of separation is your own separate property, and not family property;
  • Any debt either you or your spouse incurs after the date of separation is that spouse’s sole responsibility;

What amounts to separation? How do you determine the date of separation?

You or your spouse do not need to move out of the matrimonial home in order to be separated. However, at least one spouse needs to terminate the relationship – inform the other and then start acting like the relationship is over e.g. stopping behaving like a couple, stopping sleeping together, no longer do tasks for each other, closing joint accounts etc.

With respect to separation, the Family Law Act acknowledges that spouses may be separated despite continuing to live in the same residence. It also provides that, as evidence of separation, the court may consider communication (e.g. words, letter, emails etc.) of an intention to separate permanently as well as an action that demonstrates the spouse’s intention to separate permanently. A court will look at all evidence and relevant factors when determining the appropriate date of separation.

It should be noted that this family law definition of separation is not the same as the definition used by the Canada Revenue Agency. It’s important to know that the Canada Revenue Agency has its own definition of separation. The CRA requires spouses to have lived separate and apart for 90 days before viewing them as actually separated. However, once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

How does the date of separation affect the date I may need to file a family law claim?

This depends upon whether you are legally married to your spouse or not.

  • Common-Law spouses: 2 years from date of separation to file their claim for financial orders such as spousal support, family property adjustment order etc.( not child support)
  • Married spouses: 2 years from the date of their divorce to file their financial claim. However, a divorce cannot be finalized until at least 1 year after the date of separation, except in cases of adultery and cruelty.

Please remember the content above represents a basic answer to a general question. Please contact one of our family lawyers at GS&T LLP to arrange a consultation specific to your circumstances.

CONTACT OUR LAWYERS TO ARRANGE A CONSULTATION

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