Legally Separated While Living in the Same House in New Brunswick

Many couples in New Brunswick separate but cannot afford a second home. If you are sharing a house with someone you no longer consider your partner, you may wonder whether you are really separated in the eyes of the law.

The short answer is that moving out is not always required. This article explains how separation under one roof generally works, and what the date affects. Your own facts matter, so treat this as a starting point.

This article covers the law of New Brunswick.

Why the date matters

For a divorce, the federal Divorce Act says the ground is a breakdown of the marriage. One way to show breakdown is that the spouses have lived separate and apart for at least one year immediately before the divorce is decided.

That makes the start of your separation important. A date that is vague or disputed can cause delay or argument later.

Can the clock run in the same home?

Yes, it can. Under the Divorce Act, spouses are deemed to have lived separate and apart for any period during which they lived apart, and the Act also requires that at least one of them intended to live separate and apart. So the clock can run even if they lived in the same home, subject to proof.

In practice, people sharing a home often point to things like separate bedrooms, no longer sharing meals or a household routine, separate finances and telling family and friends. These are general examples of evidence, not a legal checklist, and what a court accepts depends on the facts.

If you try to reconcile, the separation period is not considered interrupted or terminated if you resume cohabitation for not more than ninety days with reconciliation as its primary purpose.

What the date can affect

Support is a separate question that depends on your circumstances, so it is worth confirming with a lawyer how it applies to you.

There is one exception to the one-year wait. A divorce can be based on breakdown without a year of separation where the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

Your spouse's agreement is not required for the one-year ground. A divorce can proceed on a petition by one spouse where the other does not cooperate, and the court decides after the separation is proved.

If you are common-law partners

The divorce rules above apply to married spouses. A common-law partner is a person who cohabits in a conjugal relationship with another person without being married to them.

Spousal support can still apply to common-law partners who have cohabited continuously for at least three years with one substantially dependent on the other, or who have cohabited in a relationship of some permanence and are the parents of a child. Property is different: a common-law partner does not get automatic equal division of the home or other property. A lawyer can help you document when the relationship ended.

Safety and next steps

Sharing a home after a breakup can be unsafe. If you fear violence, an Emergency Intervention Order can be applied for by the victim of intimate partner violence, or by a prescribed person on the victim's behalf with the victim's consent. The relationship can be married, common-law or dating, whether or not the two have lived together.

An adjudicator may make the order without notice to the other person where intimate partner violence has occurred or is likely to occur and the seriousness and urgency warrant it, and must decide within 24 hours. It can restrain contact and grant temporary exclusive occupation of the residence.

• Write down the date you and your partner decided the relationship was over, and who agreed.
• Keep records of separate bedrooms, finances and household arrangements.
• Save messages or emails that confirm the separation.
• Avoid casual reconciliation periods without noting their dates and purpose.
• Get legal advice before relying on a same-home separation date.

Frequently asked questions