Have you ever scanned the Grammy nominations and wondered about the Record of the Year category? You see a category for Album of the Year and Song of the Year, so what is Record of the Year? Sometimes terms that should have a straightforward meaning aren’t clearly defined. Turns out Record of the Year honours the performing artist and Song of the Year honours the songwriter, but you wouldn’t know that from the titles.

In family law, the term we see a lot of confusion about is legal separation. Frankly, we avoid using that phrase because it can refer to several different stages in the separation process.

We’ve heard clients use the words legal separation to mean any of the following:

Separation agreement

A separation agreement is the written documentation of the separated couple’s settlement and covers all the issues related to that separation. In the case of common-law spouses, it marks the end of the separation process. For married couples, it is the step before the actual divorce.

Date of separation

The date of separation refers to the time the couple ceased to be a couple and marks the beginning of the legal process. It can be tricky to determine this date because spouses can live together and be separated. In that case, several factors can help us arrive at a date, including:

  • Has the couple communicated regarding the separation (are both people aware the relationship has ended)?
  • Are the spouses sleeping in the same bedroom?
  • Do the couple’s friends and family think they are separated or still together?
  • Are the spouses eating and socializing together and carrying on the same roles as during the relationship (e.g., cooking for the other, washing clothes)?

Retaining legal counsel or filing of court documents

These actions are part of the separation process but don’t define the point of legal separation.

Legalese is precise

For better or worse, we lawyers communicate differently from the rest of the world, often using legalese (yes, we’re aware it’s annoying). We don’t like when words or phrases have multiple meanings because it can lead to misunderstandings. We tend to avoid using the term “legal separation.” That’s why, if you ask your lawyer, “Am I legally separated?” they’ll likely respond by saying, “That depends; what do you mean by that term?

James Pullar-Evans Family LawBy James Pullar

If you have questions about this post or collaborative family law in general, contact me today at JPullar@evansfamilylaw.ca