Sex After Separation

Can a husband and wife be legally separated if they continue to have sex after separation?   This issue has considered, in recent years, by several Courts across the country.   It would seem that a tryst, for old time's sake, between a separated husband and wife is more common than we think.   

But why would the Courts care whether consenting adults have sex after they are separated?   In family Court proceedings the date of separation is important in two ways.   The division of family property requires a specific date of separation.   Family assets and debts are typically valued, for the purposes of a property division, on the date of separation.   For example, if you are dividing up a bank account, the value of the bank account will vary from day to day.   The Court, then, will generally look at the value of the bank account on the exact date of separation, in order to assign a specific value to the account.   If the date of separation is uncertain because the separated couple keeps engaging in amorous encounters, then a valuation of property is difficult.

Likewise the date of separation is important in divorce proceedings.   The most common ground for a divorce is that the spouses have lived separate and apart for more than one year.   When testifying before a Judge an applicant for a divorce must state the specific date that the applicants stopped living together.   If it turns out that a separated husband and wife succumbed to each other’s charms on day 361 of their separation, have they lived separate and apart for more than one year?   Are they living together again?

This issue was recently considered by the New Brunswick Court of Appeal.   In that case the parties separated, and approximately three months later began to  engage once again in sexual relations.   They continued their sexual relations over the course of several months.   In the course of a divorce trial, approximately 16 months after their initial separation, it came out that they had had sexual relations just a few months prior to the trial.

The trial Judge ruled that, because of their sexual relations, the parties had not lived separate and apart for more than one year, and that accordingly they were not entitled to a divorce.

The New Brunswick Court of Appeal was divided on the issue.   One Appeal Court Judge agreed with the trial Judge.   However, the remaining two Appeal Court Judges held that the trial Judge had made a mistake and that the parties had been separated for a year and were accordingly entitled to a divorce.

The majority of the Court of Appeal found that there were several criteria for deciding when two people were truly separated.   Some of the criteria identified by the Court were:

1.   Do the parties occupy separate bedrooms?

2.   Do the parties engage in sexual relations?

3.   How do the parties communicate with one another?

4.   Is there any sharing of domestic responsibilities?

5.   Do the parties share meals together?

6.   Do the parties engage in social or recreational activities with one another?

7.   Do the parties share “facilities”, such as watching television together?

8.   Is there any valid reason for the parties to be living under the same roof?

On balance, the Court found that there were far more criteria pointing to the parties having lived separate and apart over the course of the year.   Indeed, the only criterion indicating otherwise was that they had had occasional sexual relations.

Peter J. Bruckshaw is a Winnipeg lawyer with St. Mary's Law LLP.  Contact him at 204-942-1799 or [email protected]