The concept of “separation” may seem obvious, but from a legal perspective it is far from simple.
The simple part is that all that is required to separate from your spouse or common-law spouse is for at least one of you to decide to end the marriage or relationship, and act upon the decision in some way.
Moving out is not necessarily required, but it is a very common form of acting on the decision to separate. Similarly, not sleeping together or engaging in sexual relations is a common form of acting on the decision to separate, but it is not an essential requirement. People often refer to “legal separation” but there is no such thing. There is just “separation”. The act of separation marks the date when your interest in half the family property and debt arises. It also marks the point in time when the clock starts ticking for your property and spousal support claim if you are a common-law couple, in which case you need to start your claim within two years of separation. So the issue of “when did you separate” may be of great importance.
This issue leads to the next problem with separation, which is if the parties do not agree as to when they separated, how can a court make that determination? The court looks at many factors. Evidence must be led about the decline and end of the marriage or marriage-like relationship. The court hears evidence such as the subjective opinions of each party, the lifestyle patterns of the parties, such as whether they slept, cooked, ate, spent time, were intimate or socialized together, and whether they shared household chores. The court looks at communications between the parties and between each party and third parties. It looks at whether the parties gave the appearance of being a couple. If you are about to separate, make sure your intention to do so is very clear, and keep track of the date you acted upon the intention.