Can You Separate While Living Under the Same Roof in Manitoba?

Many couples decide the relationship is over but cannot afford two homes. If that is you, you may be wondering whether you are really separated, or whether you have to move out first.

This article explains what Manitoba guidance says about separation, how it connects to the one-year divorce period and property rules, and what kind of evidence can help show when and how you separated.

This article covers the law of Manitoba.

Do you have to move out to be separated?

Manitoba government guidance says a court order or formal separation agreement is not required to separate. Spouses may simply live separate and apart.

Separation also does not end the marriage. Separated spouses remain legally married until a divorce. Under the Divorce Act, neither a court filing nor a formal legal separation step is a precondition to showing the marriage has broken down by separation.

How separation under one roof is treated for divorce

A court may grant a divorce on the ground that the marriage has broken down. The usual way to show this is that the spouses lived separate and apart for at least one year immediately before the divorce is decided, and were living that way when the proceeding began.

The Divorce Act deems spouses to have lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other. The wording is about living apart plus intention.

The law we can point to does not spell out what happens when both spouses stay in the same home. Whether you count as living apart will depend on your specific facts, such as how you share space, meals, money and household tasks. A lawyer can tell you how a court is likely to see your situation.

If you try to reconcile, a period of resumed cohabitation of not more than 90 days, with reconciliation as its primary purpose, does not interrupt the one-year period.

What it can mean for property and support

Under The Family Property Act, each spouse has the right, on application, to an accounting and an equalization of assets. Time limits for property claims run from events such as the divorce taking effect, so the dates in your situation matter.

For common-law partners, the Act's time limit for an unregistered relationship is three years from when they began to live separate and apart. That makes the date you began living apart important, even if you still share an address.

On support, after separation each spouse must take all reasonable steps to become financially independent of the other. If you still share expenses, it is worth writing down who pays what.

Evidence that can help

Because the test is living apart plus intention, the dates and your intention are what a spouse generally needs to prove. We cannot point to an official list of required evidence for couples under one roof, but these kinds of records are commonly useful:

• A written note of the date you or your spouse decided the relationship was over, and how it was communicated.
• Messages or emails that show the intention to separate.
• Records of separate bedrooms, separate meals, and divided household tasks.
• Separate bank accounts and records of who pays which shared bills.
• A written separation agreement, which Manitoba guidance recommends when there are children or issues about property or financial support.

What to do next

• Write down the date you believe you separated and why.
• Keep copies of messages, bills and account statements that show how you divide life under one roof.
• Consider a written agreement, and get independent legal advice before signing because it is a binding contract.
• If you are not safe at home, a protection order may be available, and it can include removing the respondent from the residence.
• Speak with a family lawyer about how your arrangement may be viewed for divorce and property.

Frequently asked questions