You only have to want to live "separate and apart" from your partner to legally separate from them. This means that you have:
- decided that you want to end your marriage or common-law relationship, and
- started to behave in a way that shows you want to end the relationship.
Only one of you has to want this for you to legally separate.
You don't have to go through a formal process or get a document to legally separate. But if you're married, you have to go through a formal process if you want to get a divorce.
Family law is mostly about the rights and responsibilities of partners, parents, and children. Rights are what the law says you can get. Responsibilities are what the law says you have to do.
If you're married or live together in a common-law relationship, the law gives you certain rights and responsibilities towards each other, both while you're together and if your relationship ends.
Some of the legal issues you have to think about depend on whether you’re married or in a common-law relationship, like:
- dividing property if you're married
- dividing property if you're in a common-law relationship
- staying in the matrimonial home if you're married
- staying in the home if you're in a common-law relationship
Other legal issues don't depend on whether you're married or in a common-law relationship, like:
The rights and responsibilities you have after your relationship ends depends on the facts of your situation. And for common-law partners, it can depend on how long they lived together.
For example, the amount of spousal support you get or pay depends on things like the length of your relationship, your responsibilities during the relationship, and your income. And if you get divorced, you're no longer spouses, and may not qualify for benefits under your partner's medical plan if they have one.
You can talk to a lawyer who can help you understand what the law says you have to do after you separate or divorce and what you can get.
If you can't afford to hire a lawyer for your whole case, you can still speak with one for general advice. Some lawyers also provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.
If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.
The rules about who can stay in your home depend on whether you're married or in a common-law relationship.
Your matrimonial home is the home where you and your married partner lived together before you separated. It can be a house, townhouse, apartment, or co-op unit. It can be owned or rented.
After you separate, you and your partner have:
- an equal right to stay in a matrimonial home that is located in Ontario
- a right to claim a share in the value of a matrimonial home wherever it is — in Ontario or anywhere else
This is true even if only one of you has legal title or owned the home before marriage.
The equal right to stay in the home is not about who owns the home. It is only about who can live in the home.
This means that even if your partner is the only owner of the matrimonial home, they can't lock you out or refuse to let you into the home without an agreement or court order.
You and your partner's equal right to stay in the home lasts until one of the following happens:
- There is a separation agreement that says one of you can't live there.
- There is a court order that says one of you can't live there.
- You sell your matrimonial home or your lease ends.
- You get divorced: If you get divorced and you aren't on the title to the matrimonial home, you're no longer considered a spouse with an equal right to stay in the matrimonial home. This is an important reason why you might not want to get a divorce until you have an agreement or court order about what to do with the matrimonial home.
If one of you decides to move out, that person does not give up their right to claim ownership of the matrimonial home or to claim a share in the value of the home.
Once you decide to separate, you or your partner may move out of your home. But you don't need to live in different homes to legally separate.
You can "live separate and apart under the same roof". This means you both live in the same home but you don't do things together any more, such as sleep, go out, cook, or eat together.
You might decide to live in the same home because it's easier to care for the children together or because it's too expensive to move out.
Whether you and your partner can live separate and apart in the home, even on a temporary basis, often depends on:
- how tense things are between you and your partner
- whether someone can afford to move out or has somewhere else to go
- safety concerns, including if there has been a history of partner abuse
You should also think about what you want to happen with the home after you and your partner have resolved all of your other issues.
Sometimes neither partner wants to keep the home, or both partners agree that they can't afford the home anymore. Other times, both partners want to live in the home and want the other partner to move out.
The exact day that you and your partner separate is called the date of separation. This date is important because it affects things like:
- Divorce: one way of getting a divorce is by being separated for a year. The date you separate is the day you start counting this one year period.
- Dividing property: Married couples have a right to a share in the value of property they got during their marriage. You're not entitled to a share in the value of property after the date you separate unless the property is jointly owned.
You may not be sure what your date of separation is. Or maybe you and your partner can't agree on the date you separated.
To figure out the date you separated, you can look at when you started to:
- live in separate homes or sleep separately if you still live in the same home
- separate your money and finances
- do things on your own, such as having meals, going on vacations, or celebrating holidays apart
You can also look at documents like:
- letters, emails, or messages where you or your partner talk about separating
- documents that say you're not living as a couple. For example, if your income tax return says your marital status is "separated".