Can You Be Separated While Living in the Same House in Nova Scotia?

Many couples decide the marriage is over but cannot afford two homes. If that is you, you may wonder whether staying under one roof means the clock for divorce has not started.

This article explains what the Divorce Act says about separation, why a clear date matters and how people commonly document it. Whether sharing a home counts in your case depends on the facts and is worth confirming with a lawyer.

This article covers the law of Nova Scotia.

What the Divorce Act requires

A court may grant a divorce on the sole ground 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 determined, and were living separate and apart when it started.

The Act deems spouses to have lived separate and apart for any period when they lived apart and either of them intended to live separate and apart, so one spouse's intention is enough.

Does living in the same house count?

The wording above speaks of spouses who "lived apart." Whether spouses who share a home can meet that test depends on the facts of your situation, and it is worth confirming with a lawyer. What stays the same is that the year is counted up to the time the divorce proceeding is determined, and you must have been living separate and apart when it started. There is no simple yes or no that fits every couple.

Because the answer depends on the facts, do not rely on a general assumption. A lawyer can tell you how strong your position is before you file and may suggest ways to make your arrangement clearer.

Ways to show separation under one roof

Evidence matters because you may need to swear to the separation date. Common steps people take include:

• Sleeping in separate rooms and ending shared intimacy.
• Separating finances, such as separate accounts and bill payments.
• Cooking and doing laundry separately where possible.
• Telling family, friends or a lawyer in writing that the marriage is over, and noting the date.
• Keeping a short dated record of the changes you made.

Be accurate about the date. The court must satisfy itself that there has been no collusion in relation to the application.

Reconciliation, cruelty and the one-year wait

If you try to reconcile, the one-year period is not interrupted or ended just because you resumed living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt.

You do not always have to wait a year. Breakdown can also be shown if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

If you are unsafe at home, you can apply by telephone for an emergency protection order under the Domestic Violence Intervention Act. A victim may apply between 9:00 am and 9:00 pm, while peace officers, Victim Services staff and designated transition house staff may apply at any time. A judge must review an order within 7 business days after receiving the order and supporting documentation.

Children, support and court steps while you share a home

Separating under one roof does not pause questions about children and money. When a court makes parenting or contact orders under the Divorce Act, it considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. The Parent Information Program is mandatory when a court application involving children is filed in the Family Division.

For spousal support, the court considers the condition, means, needs and other circumstances of each spouse, including the length of cohabitation and the functions each performed, and fault is not to be considered. For a child under the age of majority, child support is the table amount for the payor's province plus any section 7 amount.

Court-based options include conciliation, mediation and voluntary judge-led settlement conferences. Nova Scotia's Family Division divorce forms include Form 59.46 (Joint Application for Divorce), Form 59.09 (Petition for Divorce) and Form 59.45 (Application for Divorce by Agreement). A divorce takes effect on the 31st day after the day the judgment granting it is rendered.

If cost is a concern, Nova Scotia Legal Aid family coverage includes matters under the Divorce Act and the Parenting and Support Act. The Commission may find an applicant eligible even if income is above the usual amounts, where retaining a lawyer would cause undue financial hardship. How this applies to you depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Decide what you believe your separation date is and write it down.
• Make visible changes to your living arrangement and keep dated notes.
• Gather proof of separate finances and any messages that confirm the date.
• Talk to a lawyer about parenting, support and property while you share a home.
• If you plan a joint application, know that where the spouses agree on all issues the file can go to a judge without a hearing.

Frequently asked questions