Living ‘Separate and Apart’ Under the Same Roof

There’s no doubt the pandemic has had an impact on relationships — in fact, one B.C. group estimates divorce rates are up 30 per cent globally. But the pandemic has also influenced how people separate. With so much COVID-related uncertainty around health, finances, education and employment, some separated couples may choose to continue living together for financial or other practical reasons.

Living ‘Separate and Apart’ Under the Same Roof

Back in early 2020, few could have predicted the pandemic-fuelled real estate boom we’re seeing today. For many couples, the marital home is their primary asset, and in the early days of the pandemic, it didn’t seem like the right time to sell.

Now, with red-hot house prices across the GTA and beyond, it may be too expensive for one party to move out and buy or rent a place of their own until the matrimonial home is sold. In some cases, both partners are staying put until they can figure out next steps.

It’s not unusual for divorcing couples to continue living together for the sake of their kids. If one partner moves out, they might have concerns about their parental rights and access to the children. There can also be a perception that if the kids stay with one parent, that spouse somehow becomes the primary parent.

As well, the past 15+ months have been filled with so much uncertainty, transition and stress that some splitting couples may live together to reduce the amount of significant life change their children are facing. Reducing COVID exposure from travel between homes or the ability to keep social bubbles tight may play a factor as well.

While living “separate and apart” under the same roof is not for everyone, it’s workable if there are boundaries, clear communication and respect.

Set the date

To attain a divorce based on a separation, a couple must establish that they have lived “separate and apart” for at least one year. The date of separation can be based on several factors that determine when spouses started living “separate and apart.” If you’re no longer a couple, but you live together, it’s crucial to agree on what that date of separation is so it can’t be changed down the road. This is when you may want to consider a properly executed separation agreement so there is no ambiguity.

If you can’t agree on or figure out the date, look to when there was a physical separation — such as when you started sleeping in different bedrooms. When did you let friends or family know about the split? When did you start to untangle your finances? If you’re unable to agree on the date and put it in writing, one party could argue for a later date or slow down proceedings.

Ditch the joint accounts

Expenses will continue to accumulate while a separated couple lives together, so there can be confusion around who should pay for what. It’s best to ditch the joint account but continue to keep things business as usual. Whoever paid for particular expenses should continue to do so, such as splitting the mortgage payments and utilities. It might be helpful to draw up a budget outlining each party’s financial obligations. Avoid buying each other dinner or gifts, as that could be grounds for changing the date of separation.

Schedule parenting time

Depending on the level of conflict between the parties, it might make sense to carve out a schedule for parenting time with the children. If it’s a reasonably low-conflict situation, the plan doesn’t have to be set in stone, but even the most amicable relationships can take a turn. The more things can be clear and spelled out, the better for everyone.

On that note, it’s important to minimize conflict whenever possible. Don’t drag the kids into your fights and avoid arguing in front of them. If there is a lot of friction and hostility, couples need to focus on living separate lives with minimal interaction. Otherwise, living together may become an untenable situation.

Live like roomies

There are some factors a court may look at when determining that a couple has lived “separate and apart,” including whether they are intimate with one another or if they continue to share a bedroom.

Not only could these types of behaviours affect your divorce proceedings, but you are also treading into murky territory if you continue to sleep in the same bed, have sex or go out for dinner dates. Depending on the nature of the relationship — say, if one party wants to split and the other doesn’t — don’t lead the other person on by sending mixed signals.

Set clear boundaries — and stick to them!

A little respect

If you live together and have decided to start dating, be discreet and avoid flaunting it in front of the other person. Leaving your laptop open with your Bumble profile plastered on the screen will only increase conflict and hurt feelings. There needs to be a basic level of respect in play at all times.

That respect should extend to children as well. They may not understand what separation is, so they think that their parents are still together. Maybe, because of their age, they don’t even know that their parents are splitting. Clear communication is not only important with your partner but with your children too, no matter what their age. Keep “the talk” age-appropriate but be clear — you don’t want them finding out from someone else.

When to avoid living together

Of course, there are scenarios where living together is a non-starter. If there’s violence or abuse in the home and safety is an issue, you should not continue to live together. With the help of a lawyer, you can obtain an order for exclusive possession of your home. This is a court order allowing you to stay in the home while your partner is prevented from being on the property.

In situations where there’s verbal abuse, animosity, high conflict, and so on, be honest and ask yourself if it’s worthwhile to live in that type of environment. Your health and wellbeing are essential, and divorce can be a very long process. Realistically assess the costs and benefits of living together versus finding another arrangement. If living separate and apart under the same roof will undermine your mental health, it might not be the option for you.

Leanne Townsend is a multifaceted entrepreneur and attorney experienced in the areas of family law and domestic violence. She provides a full range of family law legal services in addition to running workshops and other programs to support people as they go through divorce.

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