Whether you were married or in a “marriage-like” relationship, the legal process will often require that you nail down a separation date.
The separation date is when at least one of the parties communicated a decision to end the relationship. Sometimes it is clear exactly when that happened, as in the case of one spouse discovering the other’s infidelity and kicking him or her out of the house, never to return.
Sometimes it’s not, such as when parties make an attempt to work on the marriage, following a discussion about separating or following a period of separation. Legally, a reconciliation attempt that lasts 90 days restarts the clock on your separation period.
What if you and your spouse agreed that you would give it “one more try”, on the condition that one of you participated in couples counseling or stopped drinking? Is the marriage over when the plug gets pulled on the counselling, or when one starts drinking again, or was it over before and this is just the proof?
In BC, the separation date is when your and your partner’s property rights “crystalize”. That means that, with respect to any property in your name or debt in your name, the other party acquires a half-interest in it on the separation date—and vice versa. The value of property (and debt) you had before the start of the relationship, or that was bequeathed or gifted to you by someone other than your spouse, may be subtracted from the mix.
The separation date, if you are not legally married but in a “marriage-like” relationship, also starts the clock ticking on your right to claim for spousal support, and a division of property and debt as between you and your spouse. Those rights expire 2 years after separation, for common-law couples in BC.
If you are married, the separation date starts the clock ticking toward the earliest date you can obtain a divorce based on living separated for at least one year.
It is not uncommon for parties who have separated, to resume or continue to engage in sexual relations. It’s not always clear at the time whether or not this is a reconciliation attempt.
In one New Brunswick case, K.L.S. v. D.R.S., 2012 NBCA 16, the trial judge decided that two parties couldn’t separate in February, agree to resume a sexual relationship in May, keep that up until the next February and then come before her a very short time later having met the criteria for getting divorced. That is, she held that the parties were not “living separate and apart” for at least a year. On appeal to the New Brunswick Court of Appeal, two out of the three appeal judges held that that trial judge had made a mistake:
[23] The courts long ago accepted the possibility that an estranged couple may at law be living separate and apart, even though they continue to reside under the same roof. That said, surely we must also be open to the possibility that an estranged couple who no longer share a residence may at law be living separate and apart even though, for whatever reason, they continue to engage in consensual sexual activity with one another.
In coming to that decision, the NBCA considered the fact that sex was only one possible indication that two people are in a marital relationship (and is sometimes absent from a marriage), and adopted the reasoning of BC’s Madam Justice Fenlon in Oliver v. Oliver, 2011 BCSC 1126:
In general, when parties choose to live in separate residences (other than temporarily because of work or educational demands), they lack one of the foundational elements of a marriage. Absent a mutual intention to reconcile, they may continue to have a relationship of sorts, but it will not be a marriage. [para. 98]
The New Brunswick husband and wife, who were united in seeking to divorce each other, had to go all the way to the NBCA for it, and because the trial judge had refused in the first instance to deal with their custody/support matters and property division, they had to go back to her again to get that done.
This issue can arise in another context: a dispute over the date of separation which impacts on the financial interests of the parties; e.g. those stocks you bought that skyrocketed in value… did you buy them before or after the separation date? That is, did you own the asset on the relevant date? What if you disagree on when you actually separated from your spouse?
Or, what if, like this man, you won $6.1M in the lottery and kept it secret until you walked out on your common law spouse days later?
With an obvious reason for your ex to advance an argument for a later separation date, and evidence that your relationship was in an arguably ambiguous state—we can’t always call the end result, but we can tell you that these controversies definitely extend the duration and cost of your litigation. “Arguable” and “ambiguous” are synonyms for “litigious” and “expensive”.
Finally, there is one other potential consequence to “sex with the ex”… It can result in the conception of a child.
This will be a post-separation child of your marriage or union. And in British Columbia, we have a curious wrinkle in the Family Law Act. Parents who are living together when their child is born are both automatically legal guardians of their child. But if they never live together after the child is born, then one parent (invariably the mother) is de facto the sole guardian of the child, and the other has only the legal rights and responsibilities of a natural parent. Those include a responsibility to pay child support to the other parent, and a right to be notified of certain matters relating to the child, but the parcel of rights and responsibilities are much less robust than those of a child’s legal guardian.
The non-resident parent can become a legal guardian of the child by agreement with the other parent, or by appointment of the court. However, I have seen this situation a number of times, with the awkward result that the father is a guardian of one (pre-separation) child, and not a guardian of that child’s full sibling born after the parents separated.
If I have missed any of the legal implications of engaging in a sexual relationship with your former spouse post-separation, let me know at dl@heatherdalelaw.com.