- For property division, living together again mainly to reconcile for at least 90 days in total within one year of separating means you are treated as not having separated.
- For divorce, resumed cohabitation during a period, or periods totalling, not more than ninety days does not interrupt the one-year separation period, which is a different rule.
- Write down your dates, and get independent legal advice before signing any document that settles parenting, support or property matters with your spouse.
Many couples separate, try again, and then separate for good. When that happens, an obvious question follows: does the clock start over, or does the original separation date still count?
In British Columbia the answer depends on the question being asked. Two different 90-day rules exist, one for property division and one for divorce, and they do not work the same way. This article explains each and keeps them apart.
This article covers the law of British Columbia.
What counts as separation in BC
There is no such thing as a "legal" separation in British Columbia. If a couple in a marriage or marriage-like relationship stops living together, they are separated.
You can also be separated while still living in the same home. The Family Law Act says spouses may be separated despite continuing to live in the same residence, and a court may consider evidence such as one spouse telling the other they intend to separate permanently. Government guidance puts it as a clear intention of permanent separation that has been communicated and acted upon.
Why the separation date matters
The date is not just a formality. It affects several things:
- Debts: family debt covers obligations incurred from the start of the relationship until separation, and debts incurred after separation count only if incurred to maintain family property.
- Time limits for unmarried spouses: claims for property division and spousal support must be started within 2 years, and for unmarried spouses in a marriage-like relationship that period runs from the date they separated.
- Divorce: the court will not grant a divorce until the spouses have been separated for at least one year.
Because so much turns on one date, a period of getting back together can matter a great deal.
The Family Law Act 90-day rule for property division
Under section 83(1) of the Family Law Act, spouses are not considered to have separated for property division purposes if two things are true. First, within one year after separation, they begin to live together again with the primary purpose of reconciling. Second, they continue to live together for one or more periods totalling at least 90 days.
If the reconciliation totals less than 90 days, or the main purpose was not to reconcile, this rule does not apply and the original separation date stands for property division.
There is a further exception. Part 5 of the Act does not affect a property division already made under an agreement or order if the spouses later live together and then separate again. In other words, reconciling after you have settled property does not automatically undo that settlement.
The Divorce Act 90-day rule is different
For a divorce, the question is whether the spouses have lived separate and apart for at least one year immediately before the divorce is decided. Spouses are deemed to have lived separate and apart for any period during which they lived apart and either intended to live separate and apart.
The Divorce Act then says that period is not interrupted by resumed cohabitation during a period, or periods totalling, not more than ninety days. So a short try at reconciling does not necessarily restart the one-year count for divorce.
Only the BC Supreme Court can grant a divorce, and one spouse must have lived in BC for a year or more. The Divorce Act applies only to married spouses.
| Question | Family Law Act s.83(1) | Divorce Act s.8(3) |
|---|---|---|
| What it applies to | Property division | The one-year separation period for divorce |
| Effect of reconciling | At least 90 days in total within one year, mainly to reconcile, means you are treated as not having separated | Up to 90 days in total of resumed cohabitation does not interrupt the period |
| Purpose of reconciling matters? | Yes, the primary purpose must be to reconcile | The rule is framed around the length of resumed cohabitation |
The two rules point in different directions. Reconciling for more than 90 days can erase the separation for property division, while reconciling for 90 days or less is what protects the one-year period for divorce. Do not assume that one rule's answer applies to the other.
What to do next
Whether a reconciliation was genuine, and what the evidence shows about when you separated, depends on the facts. A lawyer can look at your situation. In the meantime, these steps help:
- Write down the date you first separated and how you communicated it, whether in a message, a conversation or a change in living arrangements.
- Record each date you moved back in together and each date you separated again, and what you each intended during that time.
- Keep messages, emails and records that show your intentions, such as discussions about reconciling.
- Note any debts taken on and any property bought or sold around those dates.
- Keep track of the time limits. Property and spousal support claims under the Family Law Act must be started within 2 years, which runs from the divorce judgment for married spouses and from the date of separation for unmarried spouses. A married person claiming spousal support under the federal Divorce Act has no time limit, and there are further exceptions for setting aside agreements and for time spent in family dispute resolution.
- Get independent legal advice before signing any agreement that settles matters with your spouse. How a reconciliation period applies to your situation depends on the facts, so it is worth confirming with a lawyer.
A lawyer is not required to separate or divorce. However, government guidance says it is very important to speak with one before signing a document that settles matters with a spouse.
Frequently asked questions
If we got back together for a few months, does that reset our separation date for property division?
It can, but only if you lived together again within one year after separating, with the primary purpose of reconciling, for one or more periods totalling at least 90 days. If it was less than 90 days in total, or the main purpose was not to reconcile, your original separation date stands for property division.
Does a reconciliation restart the one-year wait for a divorce?
Under the Divorce Act, resumed cohabitation during a period, or periods totalling, not more than ninety days does not interrupt the separation period. This is a separate rule from the Family Law Act rule, so the two should not be combined.
Can we be separated while living in the same house?
Yes. The Family Law Act allows spouses to be separated even though they continue to live in the same residence. Government guidance says this requires a clear intention of permanent separation that has been communicated and acted upon.
If we already divided our property by agreement and then reconciled, is the agreement cancelled?
Not automatically. Part 5 of the Family Law Act does not affect a property division made under an agreement or order if the spouses later live together and then separate again. What that means for you can depend on the wording of your agreement, so it is worth asking a lawyer.
Sources
- Family Law Act, Part 1, s.3(4) — bclaws.gov.bc.ca
- Province of British Columbia – Am I separated? — www2.gov.bc.ca
- Province of British Columbia – Do I need a lawyer to separate or divorce? — www2.gov.bc.ca
- Province of British Columbia – What do I need to know about getting a divorce? — www2.gov.bc.ca
- Divorce Act, RSC 1985, c 3 (2nd Supp), s.8 — Justice Laws (federal)
- Family Law Act, Part 5, s.83 — bclaws.gov.bc.ca
- Family Law Act, s.198(2) — bclaws.gov.bc.ca
- Province of British Columbia – Spousal support — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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