Separating While Still Living Together: Writing an Agreement

Many separated couples cannot afford two homes. If that is you, you may wonder whether you are really separated, when the clock starts on a divorce, and how to make decisions about money and children while you share a kitchen.

This article explains how living apart is counted under the Divorce Act, how to document your separation, and what an agreement made under one roof should cover.

Can you be separated in the same home?

For divorce, the Divorce Act deems spouses to live separate and apart for any period when they lived apart and at least one of them intended to live separately. That means the question is about your intentions and how you live, not only about two addresses.

One way to establish breakdown of the marriage is to live separate and apart for at least one year immediately before the divorce is determined, with the spouses still separated when the proceeding began. The Act's count is not interrupted by resumed cohabitation of up to 90 days aimed mainly at reconciliation.

That is the federal divorce rule. How Ontario's family property and support rules treat the date of separation can depend on the facts, so a lawyer should confirm which date applies to your situation.

How to document your separation

If you are still under one roof, evidence of your separation matters more, since nobody can point to a move-out date. A written record helps show when at least one of you decided to live separately.

• Write down the date one of you told the other the relationship was over, and keep any messages that confirm it.
• Note changes in daily life, such as separate bedrooms, separate meals and separate finances.
• Record who pays which household bills from the date of separation.
• Consider signing a short, dated note that you both agree you separated on that date.
• Keep a log of any short attempt to reconcile, since resumed cohabitation of up to 90 days aimed mainly at reconciliation does not interrupt the count for divorce.

If you later apply for divorce, a court can hear the application if either spouse has been habitually resident in the province for at least one year before the application. Only a court can grant a divorce.

What to agree on while sharing a home

A separation agreement is not a divorce and is not a step the Divorce Act requires. It is still useful, because it lets spouses divide property as they choose. Here is what a same-home agreement commonly needs to address.

Keeping the household calm and the children protected

Where appropriate, parties should try to resolve their matters through a family dispute resolution process such as negotiation, mediation or collaborative law. Parties must also protect any child from conflict, to the best of their ability.

Living together makes that harder. Agree on house rules in writing, such as who is home when, how you will communicate about the children, and what you will not discuss in front of them. If the shared parenting time is close to equal, note that the table child support amounts are not applied automatically where each spouse has not less than 40% of parenting time over a year. Which rule applies to your arrangement is worth confirming with a lawyer.

Making the agreement enforceable

A support agreement should be made with full, honest financial disclosure, without pressure, and with an understanding of its terms, or a court can set it aside. Each spouse should have their own lawyer review the agreement, since it is hard to change later.

FRO enforces a separation agreement only if it is registered. You file it with the Ontario Court of Justice or Superior Court of Justice using form 26B, then send FRO the contract, the court-signed 26B and a completed FRO registration package. If you need to change it later, you negotiate a new contract and file it with the court using form 26B.

What to do next

• Write down your date of separation and keep supporting records.
• Gather income documents; the usual benchmark is the three most recent personal income tax returns.
• Use the court financial statement forms as a checklist: Form 13 for support-only cases and Form 13.1 where property or debts are involved.
• Draft a household plan for the period you share the home, including an end date.
• Have a family lawyer review the agreement before you sign.

Frequently asked questions