Why is the Date of Separation important?
Why is this important?
The Family Law Act uses the Date of Separation (DOS) as the cut-off date for determining which property of each spouse is shareable. DOS also impacts the amount and duration of spousal support, in that the length of the marriage, which is calculated up to separation, is a crucial factor. Finally, DOS “starts the clock” on when a divorce can be granted.
How do we determine the DOS?
Part I, s.4 (1) of the Family Law Act defines DOS as the earliest of five possible dates:
- The date the spouses separate and there is no reasonable prospect that they will resume cohabitation;
- The date a divorce is granted;
- The date the marriage is declared a nullity;
- The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted;
- The date before the date on which one of the spouses dies leaving the other spouse surviving.
In most cases, “no reasonable prospect that they will resume cohabitation” is the most likely component you’ll use to determine the DOS. Below are two key factors to determine when separation occurred:
Both parties are not engaged in reconciliatory activity. For example:
- attending marriage counselling;
- sexual intimacy or sleeping together in the same bedroom;
- performance of domestic duties for each other, such as cooking and laundry;
- gift-giving on birthdays and other special occasions;
- wearing wedding rings.
Parties have taken active steps to separate their lives. For example:
- sleeping in separate bedrooms; changes to the manner in which communal areas in the matrimonial home are shared, such as not being present in the same space at the same time as the other spouse;
- formation of a new romantic relationship by one or both spouses; absence of joint socialization outside of the house; public statements to family and friends that they are separated;
- separation of financial interests.
Contact your experienced family law mediator to help you understand how this applies to you.