Separating Under the Same Roof in Manitoba: What Counts as Separated

Many couples decide the marriage is over but cannot afford two homes. You may be asking whether you can count as separated while you still share a kitchen, a mortgage and perhaps the children's routines.

This article explains the rules that are written down for separation and divorce timing in Manitoba, what they mean for money and property, and what to keep as proof. The question of sharing a home is fact-heavy, so it also explains where a lawyer's advice is worth having.

This article covers the law of Manitoba.

What separation means in Manitoba

Manitoba government guidance says you do not need a court order or a formal separation agreement to separate. Spouses may simply live separate and apart, and they remain legally married until a divorce.

The federal Divorce Act allows a court to grant a divorce on the ground that the marriage has broken down. The usual way to show that is that the spouses have lived separate and apart for at least one year immediately before the divorce is decided, and were living separate and apart when the case began. Filing in court or taking a formal legal separation step is not a precondition.

Living apart plus intention

Spouses are treated as having 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. That is why two things matter: the date you began living apart and the intention behind it.

The wording in the Divorce Act speaks of living apart. There is no official guidance we can point to that explains how that applies when both spouses stay in one home. Some couples in that position are able to show they are separated and some are not, depending on the details. If you plan to rely on a same-home separation, speak with a family lawyer before you count the year.

Divorce timing and trying again

Justice Canada guidance says you do not have to wait a year to apply, as long as you are living apart when you apply. You must have been living apart for at least one year before the divorce can be granted.

If you try to reconcile, a period of resumed cohabitation of not more than 90 days, with reconciliation as its main purpose, does not interrupt the one-year period. Time together longer than that, or without that purpose, may raise questions about when your year started.

There is an exception to the one-year wait. A breakdown can also be shown if the spouse the divorce is sought against has committed adultery or treated the other spouse with physical or mental cruelty that makes living together intolerable.

Money and property while you share a home

Sharing a home does not pause your legal duties. Spouses have a mutual duty to contribute reasonably to each other's support, and after separation each must take all reasonable steps to become financially independent of the other. A court can order support, looking at all the circumstances, including financial means, needs and the length of the relationship.

For property, each spouse has the right to ask for an accounting and an equalization of assets, and the combined value is generally divided into two equal shares unless the court orders otherwise. A claim is generally not allowed more than 60 days after the divorce becomes absolute or takes effect, though the court may extend that time in specified circumstances.

Common-law partners are different in some ways. Under The Family Law Act, partners who registered, or who lived together one year with a child or three years without one, have the same rights as married spouses. The Family Property Act defines a common-law partner as a person who registered under The Vital Statistics Act or who cohabited in a conjugal relationship for at least three years. Whether the one-year-with-a-child rule also applies to property claims depends on the details, so it is worth confirming with a lawyer. For unregistered common-law partners, a property application has a limit of three years from when they began to live separate and apart.

If the house is a homestead, an owner generally cannot dispose of it during their lifetime without the spouse's or common-law partner's written consent, whether or not the other person is on title.

Proof and next steps

Because the test turns on dates and intention, it helps to create a record at the time, not years later. Consider this list:

• Write down the date you both understood the relationship had ended.
• Keep messages or emails where either of you states you are separating.
• Note changes in the home, such as separate bedrooms, separate meals and separate finances.
• Record any reconciliation attempt and how many days it lasted.
• Collect statements for joint accounts, debts and property.
• Consider a written separation agreement, which Manitoba guidance recommends but does not require when there are children or issues about property or support.

If safety is a concern, a protection order under The Domestic Violence and Stalking Act may be available to people who live or have lived in a spousal, conjugal or intimate relationship. It can include terms such as removing the respondent from the residence. A lawyer can explain how that fits with your situation.

Frequently asked questions