The separation date is relevant both for deciding whether there has been a permanent breakdown of the parties’ marriage entitling them to a divorce and also for the purposes of determining the valuation date under section 4(1) of the Family Law Act to calculate net family property.
Section 8 of the Divorce Act governs the granting of a divorce. Divorces are almost always granted on the single ground of breakdown of the marriage. A breakdown of the marriage will be established only if the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce and were living separate and apart at the commencement of the proceeding. Section 8(3) of the Divorce Act deals with the calculation of the period of separation and provides as follows:
8(3) Calculation of period of separation – For the purposes of paragraph (2)(a),
Spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
By reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
By reason only that the spouses have resumed cohabitation during a period of, or periods totaling, not more than ninety days with reconciliation as its primary purpose.
Separation is also the triggering event for determining the valuation date, which is the date that the court calculates family property and its equalization under the Family Law Act. The definition of separation for the purposes of valuation day, however, is slightly different than the definition under the Divorce Act. Section 4(1) of the Act defines the valuation date as the earliest of a number of dates. The first of these, which is the date most often used, is the date the spouses separate and there is no reasonable prospect that they will resume cohabitation. The others include the date the divorce is granted, the date the marriage is declared a nullity, the date one of the spouses commences an application based on 5(3) of the Family Law Act, or the date before the date on which one of the spouses dies.
It is trite to say that every marriage is different. Parties can live separate and apart under the same roof and can still cohabit even if they live in separate rooms in their home, or even in different houses. In all cases the court will look at various objective factors to determine if the parties are living apart or not. The seminal case of Oswell v.Oswell probably best sets out the criteria that the court will consider when deciding the issue. These include the following:
There must be a physical separation… Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
The absence of sexual relations is not conclusive but it is a factor to be considered;
Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern;
Although the performance of household tasks is also a factor…weight should be given to those matters that are peculiar to the husband and wife relationship outlined above;
The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.