Deciding how long your separation should last isn’t an easy task. There are many reasons why couples choose to prolong their separation beyond the one year period required under Canadian law to obtain a divorce. Sometimes, one spouse hopes that a longer separation will lead to an eventual reconciliation. In other cases, one or both parties may be hesitant to officially “let go” of the relationship. Finally, some separated couples are simply content with the status quo.
There is no question that a prolonged separation has the potential for negative psychological and emotional effects on both spouses. But from a family law perspective, extending your separation can also have legal implications. Specifically, BC’s Family Law Act (FLA) places a two year limit on the period for making a claim for division of family property and family debt, division of pension entitlement, and spousal support. Once this limitation period expires, a spouse may not be able to use the FLA to divide their property or obtain spousal support.
For married couples, this two year limitation period is not connected to the length of your separation. Rather, it starts on the date that the court grants your divorce order. (Notably, the running of the time limit is suspended during any period in which you and your spouse are engaged in family dispute resolution – such as mediation – with a family dispute resolution professional.)
For common law couples, however, the separation period is very significant since the two years begin to run on the date of separation. Therefore, if you and your common law partner separated on January 1, 2019, you must start your claim(s) for division of family property / debt / pension entitlement and / or spousal support by January 1, 2021. This means, for example, that if you and your common law spouse purchased a home together solely in his or her name you would have until January 1, 2021 to bring a claim seeking division of the home.
Ultimately, the decision about how long your separation lasts is up to you. But it’s important to stay mindful of the applicable limitation periods for making a claim under the FLA.
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