Breaking Up Is Hard To Do: What Is Legally Separated?

The family law lawyers at Crossroads Law are often asked by their clients about dates of divorce and separation and when they will be legally separated. Many people think that they need to make an application to the Court or have some sort of document formalized in order for their separation to be recognized - a separation agreement. Many are surprised to learn that the act of separating does not require a formal process or any court procedures.

When a couple separates they are considered to be separated from the date that they began living “separate and apart”. Living “separate and apart” has more to do with intention than physical proximity, as it is generally recognized that a couple can live “separate and apart” while residing in the same residence. Practically speaking, it is not always possible for spouses to commence living in separate residences as soon as or shortly after they separate, for financial or other reasons. Many people start sleeping in separate rooms long before they move out.

Many people are also unaware that both spouses do not need to consent to a separation. Only one of the spouses has to have the intention to separate and act on that intention. Once this decision has been made and acted on, you do not need a Court Order or lawyer to confirm that the separation has occurred.

If you and your spouse are unmarried, a separation is all that is required to terminate your relationship. If you are married, an additional step is required. An application to the Court is required to end a marriage by way of divorce. Being separated does not automatically mean that you are divorced, even if you have finalized issues of parenting, support and property by way of an agreement.

In Alberta, there are two types of court documents that can be obtained to confirm a separation, although they are rarely used. Married people can obtain a Judicial Separation under the Matrimonial Property Act or a Declaration of Irreconcilability under the Family Law Act. Unmarried people can only obtain a Declaration of Irreconcilability. Obtaining a Judicial Separation or Declaration of Irreconcilability is one of the ways that someone can apply to the Court for division of property. Typically, however, these applications are not necessary and they are of limited value.

The date of separation is important for determining child support, spousal support and the dividing property and debt. If your spouse is not consenting to or acknowledging that you are separated the family law lawyers at Crossroads Law can assist you in taking necessary steps to ensure that the accurate date of separation is used in your proceedings.

Contact us to learn more about separation and divorce, family law information, and the entire divorce process. Call now to book a consult.

Written by Marcus Sixta