Does Trying to Reconcile Reset Your Separation Date in Prince Edward Island?

Many couples who separate try to give the marriage one more chance. You might move back in for a few weeks, spend a holiday together, or agree to try counselling under one roof. Then you worry: did that just restart the clock on the one-year separation you need for a divorce?

In Prince Edward Island, the Divorce Act has a specific answer for short attempts at reconciliation. This article explains how the separation period works, what the 90-day rule says, and where the court looks at reconciliation again. It is general information, and your own dates and circumstances matter.

This article covers the law of Prince Edward Island.

The ground for divorce and the one-year separation

The only ground for divorce under the Divorce Act is that the marriage has broken down. The Act says breakdown is established only in certain ways.

The most common way is separation. The spouses must have lived separate and apart for at least one year immediately before the divorce proceeding is decided, and they must have been living separate and apart when the proceeding started.

The other ways are adultery or cruelty by the other spouse, covered at the end of this article.

What counts as living separate and apart

The Act treats spouses as having lived separate and apart for any period when they lived apart and at least one of them intended to live separate and apart from the other. In other words, the test turns on intention, and it does not need both spouses to agree.

This matters for reconciliation. Whether a period counts depends on the facts, including what each of you intended at the time, which is why dates and honest records of what happened are useful.

The 90-day reconciliation rule

A separation is not interrupted or ended because the spouses resumed living together for periods totalling no more than ninety days, as long as reconciliation was the primary purpose.

Justice Canada explains it in similar terms: you may live together for up to 90 days, before or after filing, to try to reconcile, and the divorce action can continue as if that time had not occurred.

• The ninety days is counted as a total across all periods of living together again, not as a limit on each attempt.
• Reconciliation must be the main reason you got back together.
• The rule protects your separation period from being interrupted by the attempt.

The Act as summarized here does not say what happens once the total goes past ninety days. If that is your situation, the effect on your separation date depends on the facts and is worth confirming with a lawyer.

Other rules that affect the one-year period

You do not have to wait a full year before applying on the separation ground. You can apply while living apart, but the one year must be complete before the divorce is granted.

A separation is also not interrupted merely because one spouse becomes incapable of forming or continuing the intention to live separate and apart, if the court finds the separation would probably have continued.

The court also has its own duty on reconciliation. It must satisfy itself that there is no possibility of reconciliation of the spouses. In Prince Edward Island, the Supreme Court practice note on uncontested divorce documents asks that the petitioner's affidavit confirm there is no reasonable prospect of reconciliation, and it warns that many petitions contain mistakes.

Adultery or cruelty: no one-year wait

Breakdown can also be shown if the other spouse committed adultery or treated you with physical or mental cruelty that makes continued living together intolerable. In those cases a spouse can seek a divorce without waiting out the one-year separation.

These grounds can involve proof and a more contested process, so people often choose to rely on separation instead. A lawyer can help you weigh the options.

What to do next

If you are separated and thinking about moving back in, or you already have, take a few practical steps to protect your position.

• Write down the date you separated and who intended to live apart.
• Record every period you lived together again, with start and end dates, and note that the purpose was to try to reconcile.
• Add up the total days so you know where you stand against the ninety-day limit on periods of reconciliation.
• Gather your marriage certificate, since the petition is to be filed with one unless it explains why that is impossible.
• Be accurate in your affidavit, because the court practice note warns that many petitions contain mistakes.
• Speak with a Prince Edward Island family lawyer if your time together was longer or unclear.

Frequently asked questions