Trying Reconciliation Without Restarting the Separation Clock in Nova Scotia

Many separated couples wonder if they can give the marriage another try without losing the time they have already spent apart. The worry is real, since most divorces rely on a one-year separation.

The Divorce Act has a specific rule for this. This article explains it, where its limits are, and how to protect yourselves while you decide.

This article covers the law of Nova Scotia.

Why the separation clock matters

A court may grant a divorce on the sole ground that the marriage has broken down. Breakdown is established if spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined, and were living separate and apart when it started.

Spouses are deemed to have lived separate and apart for any period when they lived apart and either of them intended to live separate and apart. One spouse's intention is enough. That is why a failed attempt to reconcile can matter: it may raise questions about when separation began and whether it continued.

The reconciliation rule

The Divorce Act protects couples who try. The one-year separation is not interrupted or ended just because the spouses resumed living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt.

• The limit is 90 days in total, not 90 days at a time.
• The primary purpose of living together again must be a reconciliation attempt.
• The rule speaks about resuming living together, so what counts as living together is a factual question.

If you go past that limit, the rule does not tell you automatically that the clock resets. What happens depends on the facts, and a lawyer can advise how a court is likely to see them.

What if you reconcile for good?

If the reconciliation works, you may not need a divorce at all. If it does not, the Divorce Act still allows other routes. Breakdown can also be shown without waiting a year if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

Those grounds depend on the facts and on evidence, and they are not a substitute for planning a reconciliation attempt carefully.

Protecting yourselves during a trial period

• Write down the date you originally separated and which of you intended the separation.
• Agree in writing that you are living together as a reconciliation attempt, and keep a copy.
• Keep a calendar of every day spent living together.
• Keep your finances and, if you wish, your living arrangements as clear as you can, and note the reasons for any changes.
• Avoid deciding the big property or parenting questions informally without legal advice.
• Review the calendar with a lawyer before you reach the 90-day total.

Where there are children, remember that parenting decisions focus on the child's best interests, so stable routines help. Also, if safety is a concern at any point, put that ahead of any reconciliation goal.

What to do next

If you are filing for divorce, the application is made in the Supreme Court of Nova Scotia (Family Division). When the court considers a divorce, it must also satisfy itself that there has been no collusion, so be honest about the dates and about any periods you lived together.

If you are unsure about your dates, or you are near the 90-day total, speak with a lawyer. Counselling or mediation may also help you decide. Court-based mediation is run by a neutral mediator who cannot make orders.

Frequently asked questions