You Don’t Have to Move Out to Move On: Divorce While Living Under One Roof

By: Amanda Willing

Under the Divorce Act, there are three legal grounds for divorce in Canada:

1. One-Year Separation (Most Common)

This is by far the most frequently relied upon ground.

Spouses must have lived separate and apart for at least one continuous year, immediately preceding the granting of the divorce.

Importantly:

• You do not need to wait one year to start the divorce process.

• You can file as soon as you separate.

• The divorce itself will be granted once the one-year period has passed.

This ground does not require fault and does not involve proving wrongdoing.

2. Adultery

A divorce may be granted if one spouse has committed adultery.

However:

• Adultery must be proven, either by admission or evidence.

• It often leads to increased conflict and legal costs.

• It does not impact property division or support entitlements.

  
  

For these reasons, adultery is far less commonly used.

3. Physical or Mental Cruelty

A divorce may be granted if one spouse has treated the other with cruelty that makes continued cohabitation intolerable.

Again:

• This requires proof.

• It is emotionally and financially costly.

• It can escalate conflict unnecessarily.

  
  

As a result, most people rely on the one-year separation ground instead.

What Does “Living Separate and Apart” Actually Mean?

Living “separate and apart” does not require living in separate homes.

The courts look at whether the marital relationship has ended, not whether the parties share an address.

The analysis focuses on conduct and intention, including:

• Whether there is an intention by one or both spouses to end the marriage

• Whether the spouses function as a couple or as two separate individuals

  
  

Staying in the Matrimonial Home While Separated

It is very common for spouses to remain under the same roof due to:

• Financial constraints

• Parenting responsibilities

• Market conditions

• Temporary arrangements while legal matters are addressed

  
  

The court will consider whether the spouses are truly living separate lives.

Key factors include:

1. Separate Bedrooms

Sleeping in separate bedrooms is a strong indicator of separation.

2. No Sexual Relationship

A lack of intimacy or sexual relations supports the conclusion that the marital relationship has ended.

3. Financial Separation

This may include:

• Separate bank accounts

• No shared discretionary spending

• Dividing household expenses differently than during the marriage

  
  

4. Household Roles

Spouses no longer:

• Cook for one another

• Do each other’s laundry

• Act as a unified household

  
  

Each party operates independently.

5. Social Presentation

Friends, family, and colleagues are aware of the separation.

You are no longer presenting publicly as a married couple.

6. Parenting Arrangements

If children are involved, parents may still cooperate, but they do so as co-parents, not spouses.

Why This Is the Most Common Divorce Path

Remaining in the matrimonial home while living separate and apart is common because it:

• Avoids premature financial strain

• Allows stability for children

• Buys time to negotiate property and parenting issues

• Prevents rushed decisions during emotional upheaval

  
  

Most importantly, it allows spouses to meet the legal requirement for divorce without escalating conflict.

A Critical Warning: Evidence Matters

If your separation is ever disputed, the court will closely examine your conduct during the alleged separation period.

Mixed signals—such as shared vacations, ongoing intimacy, or functioning as a married unit—can undermine your claim of separation and reset the one-year clock.

Clear boundaries and consistent behaviour matter.

You do not need to move out to be legally separated. You do need to live separate lives, even if under one roof.

Understanding this distinction can protect your legal rights, reduce stress, and ensure your divorce proceeds efficiently.

If you are considering separation or are already separated while remaining in the same home, obtaining early legal advice can help you avoid costly mistakes and preserve your position.