When Are You Legally Separated in New Brunswick Under One Roof?

Many couples in New Brunswick cannot afford two homes. You may share a roof for months after the relationship has ended, sleeping apart, dividing chores and keeping finances separate. A common worry is whether that counts as being separated at all.

The answer depends on the facts, and on being able to show them later. This article explains how the federal Divorce Act treats separation under one roof, what a reconciliation attempt does to the clock, and what records can help you prove your separation date.

This article covers the law of New Brunswick.

Why the separation date matters

Under the federal Divorce Act, the ground for divorce is that the marriage has broken down. Breakdown is established if the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is decided.

That means your separation date is the start of a clock. A date that is vague or disputed can cause problems later, so it is worth settling early and writing it down.

There is also an exception. Breakdown can be established without the one-year wait where the other spouse has committed adultery or treated you with physical or mental cruelty that makes continued living together intolerable.

Can you be separated in the same home?

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

In plain terms, the question is whether your lives were actually separate and whether at least one of you meant the marriage to be over. Sharing an address is not the whole picture. Courts look at how you really lived.

Because this is a question of fact, there is no single checklist that decides it. If your situation is unusual, a lawyer can tell you how the facts are likely to be viewed.

What a reconciliation attempt does

Couples sometimes try again. The separation period is not considered interrupted or terminated if the spouses resume living together for no more than ninety days with reconciliation as the primary purpose.

A longer stretch, or a period where reconciliation was not the main purpose, may raise questions about whether the clock restarted. If you are thinking of trying again, note the dates and your reasons at the time.

The court also has a duty to consider the possibility of reconciliation, so expect that question to come up in a divorce proceeding.

Evidence that can help show your separation date

No document is magic, but a pattern of evidence that points to the same date is persuasive. Consider gathering the following.

• A dated message or email to your spouse saying the relationship is over.
• Records showing you stopped sharing a bedroom, meals or household tasks.
• Separate bank accounts, bills or changes to who pays what.
• Changes to tax, benefit or insurance records that reflect your status, where applicable.
• Statements from friends or family who saw the change in how you lived.
• A signed, witnessed written agreement that records the date, if you and your spouse can agree.

If you make a written agreement, a domestic contract such as a separation agreement must be in writing, signed by the parties to be bound, and witnessed.

What to do next

Decide and record the date you consider the relationship ended, and keep your evidence in one place. Try to keep communication civil and factual, since later disputes often turn on small details.

How living under one roof affects questions about children, support or property depends on your situation, so it is worth confirming with a lawyer. Parenting terms use decision-making responsibility and parenting time rather than custody and access. If there is any violence or fear at home, get safety help first; an Emergency Intervention Order is available in some situations.

Before you rely on a separation date for a divorce filing, speak with a lawyer about how your specific living arrangements are likely to be treated.

Frequently asked questions