British Columbia Law

Separated But Still Living Together in BC — What the Law Says

By Andrew Liggett, Sea to Sky Law, New Westminster, BC

Housing costs in BC have pushed many separating couples into an unusual situation: they have decided to end their relationship, but neither can afford to immediately move out. Fortunately, neither the Divorce Act nor BC's Family Law Act requires that separating spouses physically live apart to be legally separated.

You can be legally separated while living under the same roof — but how you live and what you document matters enormously.

The One-Year Separation Requirement

Under section 8(2)(a) of the Divorce Act, the only ground for divorce most Canadians use is that the parties have lived "separate and apart" for at least one year. Courts have consistently held that "separate and apart" can be satisfied even when two people share a home — if they are in fact living separate lives within that home.

This principle was established in cases dating back decades and was reaffirmed in BC courts. The key is that the spouses have withdrawn from the marital relationship, not that they occupy different physical addresses.

What "Separate and Apart" Means Under One Roof

To satisfy the "separate and apart" standard while sharing a home, courts look at a combination of factors. No single factor is determinative, but the overall picture must show that the marriage has broken down and the parties are living parallel, independent lives:

• Separate sleeping arrangements: separate bedrooms is the clearest indicator
• No shared meals: each person prepares or purchases their own food independently
• Separate finances: individual bank accounts; one person is not managing money for both
• No sexual relationship
• No social presentation as a couple: attending events separately, not introducing the other as a spouse
• Communication with family and friends: at least some people in your social circle know about the separation
• No shared social activities or vacations as a couple

It is also relevant if one spouse is providing domestic services (cooking, laundry) for the other as would be expected of spouses — courts are more likely to find the parties were not truly separated in that case.

How to Document Your Separation

Documentation is critical if you share a home during the separation period. Courts will later need evidence of the date your separation began. Useful documentation includes:

1. A written separation notice: a simple letter or email to your spouse stating the date of separation — even if they live in the same home — creates a contemporaneous record
2. Separate bank accounts: close joint accounts or freeze them; open individual accounts and have your salary deposited there
3. Separate credit cards
4. Telling at least some family members or friends: their later evidence of when they learned of the separation can corroborate your claimed date
5. Separate living arrangements within the home: document which bedroom each person occupies

The Date of Separation Matters for Property Division

Under BC's Family Law Act, family property and debt are valued as of the date of separation. The exact date can significantly affect which assets and growth are included in family property (and which are not). For example, if the stock market rises significantly after separation, that growth is excluded from family property. A clearly documented separation date protects both parties.

Brief Reconciliation Attempts

The Divorce Act addresses this: if a couple attempts to reconcile during the separation period, they can resume cohabitation for up to 90 cumulative days without restarting the one-year clock. This gives couples the opportunity to attempt reconciliation without sacrificing their separation period if it doesn't work out. More than 90 days of resumed cohabitation restarts the clock.

Cohabitation vs. Separation Agreements

If you are living in the same home during separation, consider formalizing the arrangement. A separation agreement can address:

• Division of expenses and how shared costs are handled while you remain in the same home
• Agreement on the date of separation for legal purposes
• Temporary parenting arrangements for children
• When and how the home will ultimately be dealt with (sold, bought out)

Having a signed separation agreement with a defined separation date is far stronger evidence than a disputed verbal conversation years later.

Practical Risks

The main risk of an undocumented shared-home separation is that the other party later claims you were not truly separated — pushing back the separation date, enlarging the pool of family property, or arguing the one-year period has not been met. A clear record prevents this dispute.

*This article is general information about BC family law. It is not legal advice. Contact Sea to Sky Law™ for a confidential consultation about your specific situation.*

This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.