Ask a Lawyer – “My spouse and I have been living under the same roof but living our own lives. Does this count as “living separate and apart” for the purpose of a divorce?”

With financial pressures, it is becoming increasingly common to live together post-separation. In fact, the Ontario Supreme Court addressed this issue in the decision McBennett v Danis. The couple lived separate and apart, but under the same roof; in order to determine whether a couple is living “separate and apart” for the purpose of a divorce, the Ontario court summarized specific considerations:

• Spouses living separate-and-apart involves two things: 1) living apart; and 2) an intent by one or both that they live apart from each other.
• Living “apart” means physical separation. However, in some cases this can occur under the same roof.
• With that said, having two residences for a period of time, and spending significant periods apart, may not be conclusive. The main reason for having separate residences will be a factor.
• To qualify, one or both spouses must withdraw from matrimonial obligations with the intent of destroying or repudiating the marital relationship. 
• The law does not require a “meeting of the minds” regarding the intent to separate. The decision need not be a mutual one.
• A clear statement or unequivocal act by one spouse to terminate the relationship will be very relevant.
• Brief references to the possibility of reconciliation – with no serious steps toward that goal – will not necessarily end or disrupt a state of living separate-and-apart.

Among these considerations, a court would consider whether the spouses (1) still have a sexual relationship or are romantically involved with other people; (2) participate in joint social activities; (3) spend vacations together; (4) attend family events and special occasions together; (5) eat meals together and share household chores.