Going through a separation with someone you once shared a close bond with is always difficult. For some couples, particularly those who are married but living separate lives in the same house, those challenges are magnified as they are unable to completely distance themselves from the past.
Under Ontario law, partners who have decided to separate but continue to live in the same house may still be classified as being legally separated. This allows them to reap the benefits that come with shared housing without having to live as husband and wife. However, this unique situation also brings a host of complex issues to navigate.
Follow us as we discuss these nuances, offering insights and guidance to those who find themselves on this unconventional journey.
Reasons For Living Together While Being Separated
According to rules laid out in the Divorce Act, a couple should live “separate and apart” to be considered as being legally separated. Since this condition can be fulfilled while living under the same roof, some broken-up couples opt for an arrangement where they share a living space but carry out their lives separately.
This may be beneficial for several reasons:
- Children: For couples with young children in particular, living together will ensure both parents are involved in raising them while responsibilities may also be shared. This arrangement can also help make it easier for kids to adjust to their parents’ separation.
- Financial Stress: Living with your former partner may also be preferred as a way to save money. Instead of maintaining two separate households, both parties can contribute to the rent, grocery, and bills of a single home while living as roommates.
- Convenience: Sometimes living together is preferred simply for the ease of it. Partners can avoid the hassle of dividing personal belongings and furniture and can continue to contribute to shared responsibilities like housework and caring for pets.
- Cultural or Religious Reasons: In certain cultures or religions, separating or divorcing your partner may be frowned upon. Continuing to live together can be a way to navigate these social expectations.
Seeking Legal Separation
In case you or your partner wishes to apply for an uncontested divorce, the court will require you both to have been separated for at least one year. Legally documenting your separation may prove vital during divorce proceedings and will also provide clarity on the terms of your separation, especially if you are living together.
Below are some of the ways in which you can pursue a legal separation from your partner.
Drafting a Separation Agreement Yourself
A separation agreement is a contract that dictates in writing the terms under which you and your partner have agreed to separate. It may cover issues like division of assets, spousal support, financial obligation, and any decisions related to taking care of the children.
Both parties must sign the agreement under the observation of a witness and can draft the document themselves. You can also choose to consult a lawyer, though it is not necessary for the contract to be binding.
Bringing in a Mediator
If you and your former partner are unable to come to an agreement on the terms of your separation, you may wish to go to court. Under Ontario Family Law, however, it is necessary that you first attempt to settle the matter through mediation of a third party. This can be done through a lawyer, arbitrator, or court-connected mediator. Their goal is to help define the terms of separation that both parties agree to.
If you’re looking for a divorce lawyer in Toronto for legal help, get in touch.
Settling Terms of Separation in Court
After failing to draft a separation agreement outside of court, the two parties may present their cases in front of a judge in court. The judge will then rule on the terms of separation which will become binding for both parties as they live together as a separated couple.
Divorce vs. Separation: The Difference
In Ontario, the legal distinctions between separation and divorce are significant and have different implications for couples. Some married couples may choose to stay separated for years (even under one roof) to avoid the finality of decisions that come after a divorce.
- Legal Status: During separation, couples remain legally married despite living separate lives. After at least a year has passed, they may contest for a formal divorce. Once granted, both parties’ legal status changes from married to divorced, impacting rights related to inheritance, pension benefits, and remarriage.
- Reconciliation: Separation can be reversible, offering the option for reconciliation. Ontario Law even encourages this, allowing parties to resume living with each other for up to 90 days without terminating or interrupting the one-year separation period. In case of divorce, however, a reconciled couple would need to remarry each other to become legally married again.
- Agreements on Finances and Child Custody: Financial and child custody agreements during separation are not legally binding and can be adjusted during divorce proceedings. The division of property can also be re-evaluated during divorce, after which it is final.
Legal Responsibilities After Separation
Division of Assets
For married couples in Ontario, property division after separation is governed by Ontario’s Family Law Act. Rather than simply dividing every asset and debt in half, Ontario generally uses an equalization process. Each spouse calculates their net family property, which generally reflects the increase in their net worth during the marriage. The spouse with the higher net family property may then owe the other spouse an equalization payment.
The date of separation can be especially important. Under the Family Law Act, the valuation date is generally the date the spouses separate with no reasonable prospect that they will resume cohabitation. This means spouses can have a legally significant separation date even when they continue living at the same address.
The matrimonial home receives special treatment under Ontario law. Both married spouses have an equal right to possession of the matrimonial home, regardless of whose name appears on the title. In some circumstances, a court may grant one spouse exclusive possession of the home.
Property rules are different for unmarried common-law partners. Ontario does not automatically give common-law partners the same equalization rights that apply to married spouses. In general, each partner keeps property they own, although claims may arise where one partner contributed to property owned by the other.
Child Support
Parents remain responsible for financially supporting their children after separation. Child support may be determined under the applicable child support guidelines based on factors such as the parents’ incomes, the number of children, and the parenting arrangement.
Living under the same roof does not necessarily eliminate child support issues. Parents who have separated while continuing to share a home may still need to determine how children’s expenses will be paid and how financial responsibilities will be divided.
Spousal Support
Separation can also create spousal support rights and obligations under Ontario and federal family law. Spousal support is not automatically payable simply because one spouse earned more during the relationship. Entitlement and the amount and duration of support depend on the circumstances of the relationship and separation.
Common-law partners may also have spousal support rights in Ontario. The rules governing support are different from Ontario’s rules for dividing property, so someone may qualify as a spouse for support purposes without having the property equalization rights available to a married spouse.
Couples who reach an agreement about support, property, parenting, or other issues can record those terms in a separation agreement. Under Ontario’s Family Law Act, a separation agreement may address property division, support obligations, parenting time, decision-making responsibility, and other matters arising from the separation. A domestic contract must be in writing, signed by the parties, and witnessed to be enforceable under the Act.
Rules To Establish When Separated While Living Together
One of the most effective ways to tackle living in close quarters with someone you are separated from is to draft a set of household rules together. By formulating simple but clear instructions on how both parties should behave in the presence of the other, you can make the overall experience of sharing a home much more comfortable for everyone involved.
Below are some examples of the rules you can establish as a separated couple living together:
- A Clear Focus on Privacy: Think of your former partner as no more than a roommate. You can establish designated private spaces within the home like separate bedrooms which should not be accessed by the other party without permission.
- Sharing Co-parenting Responsibilities: Both you and your former partner are responsible for bringing up the children within the home. Make sure to discuss a parenting plan that factors in the new dynamics of your relationship without affecting your children’s well-being.
- Household Bills And Other Finances: You may want to begin dividing expenses of the home in a clearer way, such as mortgage, utility bills, and grocery. Discuss with your partner about separating any joint accounts that were previously being used.
- Hosting and Entertaining: Be respectful of your partner’s privacy when inviting over friends and romantic interests, keeping in mind what they would be comfortable with.
Wrapping Up
Continuing to live with a former partner while in the process of separation can be as challenging as it is practical.
Remember, you are entitled to live out your separation the way that works best for you. With the right guidance, you can get through this difficult phase while ensuring your family remains protected.
If you’re in Toronto and in search of expert legal guidance, reach out to a credible family lawyer to help get all your questions answered.
