- For property division, reconciling for at least 90 days in total within one year after separation, with the main purpose of reconciling, means you are treated as not having separated.
- The Divorce Act has a different rule: a period of separation is not interrupted by resumed cohabitation during a period, or periods totalling, not more than ninety days.
- The two rules are separate, so a reconciliation can affect your property clock and your divorce clock differently.
Many couples try to get back together after separating. It is a hard time, and you may worry that a few weeks under one roof will wipe out your separation date or leave you worse off.
In British Columbia, two different laws deal with this, and they use different 90-day rules. This article explains each one in plain words so you can see how a trial reconciliation may affect you.
This article covers the law of British Columbia.
Why the separation date matters
Your separation date is a starting point for several things. Under the Family Law Act, each spouse has a right to an undivided half interest in all family property on separation, and family debt includes obligations incurred from the start of the relationship until separation. It also matters for divorce, because the BC court will not grant a divorce until spouses have been separated for at least one year.
There is no such thing as a legal separation. If a couple in a marriage or marriage-like relationship stops living together, they are separated. Spouses may also be separated while living in the same residence.
The Family Law Act rule for property division
For property division, spouses are not considered to have separated if, within one year after separation, they begin to live together again with the primary purpose of reconciling and continue to live together for one or more periods totalling at least 90 days.
There is an exception. If the reconciliation totals less than 90 days, or the primary purpose was not to reconcile, this rule does not apply and the original separation date stands for property division.
Another exception covers spouses who already have a property agreement or order. Property division under that agreement or order is not affected if the spouses later live together and then separate again.
The Divorce Act rule for the one-year period
Under the Divorce Act, breakdown of a marriage is established if spouses have lived separate and apart for at least one year immediately before the divorce proceeding is decided. A period of separation is not interrupted by resumed cohabitation during a period, or periods totalling, not more than ninety days.
Spouses are also treated as living separate and apart for any period when they lived apart and at least one of them intended to live separate and apart.
Comparing the two rules
Two different 90-day rules can apply if you move back in with your spouse after separating. Under the Family Law Act, for property division, you are not considered to have separated if, within one year after separation, you begin to live together again with the primary purpose of reconciling and continue to live together for one or more periods totalling at least 90 days. Under the Divorce Act, a period of separation is not interrupted by resumed cohabitation during a period, or periods totalling, not more than ninety days.
| Question | Family Law Act (property) | Divorce Act (divorce) |
|---|---|---|
| What is the 90-day figure? | Reconciling for at least 90 days in total treats you as not separated | Up to 90 days of living together does not interrupt separation |
| Does purpose matter? | Yes, the primary purpose must be reconciling | Its resumed cohabitation rule does not mention purpose |
| Who does it apply to? | Spouses dividing property | Married spouses seeking a divorce |
Do not treat these as one rule. A stay of a certain length can count differently under each law, so get advice on your own dates before you move back in.
What to do next
- Write down the date you separated and the dates you lived together again.
- Note whether the purpose of moving back was to reconcile.
- Keep records, such as messages, that show your intentions.
- Check whether you have a signed agreement or an order.
- Speak to a lawyer before you move back in or sign anything. It is very important to get legal advice before signing a document that settles matters with a spouse.
Frequently asked questions
Does a short trial reconciliation restart my separation date?
It depends on the law. For property division, a reconciliation of less than 90 days in total leaves the original separation date in place. For divorce, resumed cohabitation totalling not more than ninety days does not interrupt the separation period.
What if we reconcile for more than 90 days?
For property division, if the main purpose was to reconcile and you lived together for at least 90 days in total within one year after separation, you are treated as not having separated. A lawyer can tell you how this fits your dates.
Do we need a lawyer to separate again?
No lawyer is required to separate or get a divorce. Still, legal advice about your dates and any agreement is strongly recommended.
Can we reconcile while living in the same home?
Spouses may be separated even while living in the same residence. Whether you are separated or reconciled depends on the facts, including what each of you has communicated and done.
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
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
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