Separation from your Spouse But Under The Same Roof

Legal Separation need not necessarily exist in terms of actual physical separation and different residential living arrangements. Separation may also exist where the attitude of the parties towards each other suggests that they are separated. A couple may be separated but living under the same roof.

Living together but separated

Great caution, however must be taken in arriving at this conclusion. It should be arrived at only after due consideration is given to the available facts and circumstances prevailing in the home, and to a lesser extent, in the community. The evidence that such a couple are living separate and apart must be “clear and convincing”. The test is not what the public believes but rather what all the available evidence and circumstances disclose the actual state of the marriage to be.

The Ontario Court of Appeal held in Mayberry-vs-Mayberry(1971) and in Calder-vs-Calder(1974) that spouses may be living separate and apart under the same roof where there has been a mutual repudiation of the marriage relationship, producing a permanent breakdown of the relationship.

The court also held that a divorce should be granted on evidence, for instance, which indicated that there was virtually no communication between the spouses; they ate separate meals; occupied separate bedrooms and did not share social activities.

Although the cessation of sexual relations provides strong evidence of living separate and apart, it does not in itself conclusively decide the issue as was held in Cridge-vs-Cridge(1973) and Oswell-vs-Oswell(1990).

If you and your spouse are considering separation or divorce contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca

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By julius - Last updated: Monday, October 5, 2009
Filed in Divorce, Prenuptial Agreements, Separation Agreements • Tags: ,