Barrie Hayes, Family Law Partner.
The Family law act provisions in relation to equalization of net family property require that the parties account for and value family assets which existed at the date of marriage and date of separation.
The date of marriage is easily established, but fixing the date of separation, on occasion, can be problematic. Separated spouses sometimes propose different dates of separation, particularly where the spouses have continued to cohabit following separation.
In the majority of separation situations if the dates of separation in conflict are only a few months apart the issue is largely academic since the value of the family assets will not be materially different from one date of separation to the other. In those situations it is, for the most part, expedient to agree to one date in order to settle the issue without litigation.
In the event that the parties are unable to agree to a date of separation, particularly if there is a significant period of time between the two alleged dates of separation, the court will need to decide, after hearing evidence on the issue, the date of separation.
In making a finding of the date of separation the court need only determine that one of the parties has, by his or her conduct, separated from the other spouse. The court, in making a finding of the date of separation, need not make a finding that the spouses have mutually agreed to separate.
Evidence of one spouse retaining a lawyer to commence separation proceedings is normally sufficient to warrant a finding of date of separation.
Physical separation by one of the spouses is frequently found as the date of separation.
In situations where the spouses have continued to live together following separation, the courts have determined that the spouses are separated if the court was satisfied that the spouses had, while living together, withdrawn from intimacy, from providing each other with household services (i.e. laundry, making meals), and if the couple had held themselves out to society in general as having separated.