How to Avoid the Unanticipated Consequences of Living Separate and Apart from a Spouse:

A Case study on Will and Jada Smith

By Ryan C. Baker and Ashley Hizo

In a recent interview, Jada Pinkett Smith confirmed that she has been separated from actor Will Smith since 2016. Though not divorced, Jada explained that the two had been living separate and apart as “life-partners” for the past 7 years, pursuant to their “no-divorce pact”.

Jada explained that their “no-divorce pact” is a result of their view that divorce is simply not an option to them, stating in the same interview when asked why the two refuse to amicably divorce, that “We (the Smith’s) don’t want to. We love our family and we love each other. It is more of a life partnership.” Will earlier echoed this perspective in an early 2008 appearance where he explained that “Divorce just can’t be an option. It’s really that simple; if you have the option one day, that person is going to make you want a divorce… the only thing that keeps you continuing is that there’s no other options.”

While this approach to divorce is certainly an interesting one, it is not uncommon in Canadian family law. In 2022, according to Statistics Canada, 872,655 Canadians identified themselves as legally married but separated from their spouse.

There is a difference between being divorced and separated. As the case study of Jada and Will illustrates, many married couples can be separated for all intents and purposes, yet never file for divorce or take steps to resolve the issues arising out of their separation. Divorce is a process that legally dissolves your marriage whereas separation occurs when you are living separate and apart from your spouse (even potentially while remaining under the same roof). In order to obtain a divorce in Canada, you must file a divorce application with the appropriate Court. Separation, on the other hand, simply means that you and your spouse are no longer living together as a couple. Separation, in other words, permits you to live apart whilst essentially keeping your marital status. It should be noted that it is important to resolve the rights and obligations arising out of your separation as there could be limitation periods affecting your ability to make claims following separation. 

There are myriad reasons as to why a couple may choose to not proceed with a formal divorce, inclusive of religious, social or cultural reasons. For example, many Roman Catholics view divorce as something that is only permitted pursuant to limited grounds espoused by the Church and as outlined in the Bible. Another example can be found in traditional Chinese culture, wherein divorce is often culturally frowned upon as marriage is expected to last for life.

Despite one’s personal or cultural perspective on divorce, it nevertheless remains legally permitted in every province of Canada without the need to prove fault (by way of federal legislation). The only ground for a divorce in the Divorce Act (DA) is marriage breakdown. Section 8 of the DA states that you can establish that your marriage has broken down if any of the following criteria applies to you:

• You have been living apart for one year or more;
• Your spouse has been physically or mentally cruel to you; or
• Your spouse has committed adultery.

Fortunately, there are ways to resolve your separation and divorce simultaneously; either by way of a separation agreement (inclusive of a framework for a divorce application), or if a negotiated settlement is not obtainable, by way of litigation via arbitration or court.

Choosing to avoid divorce following separation - as Jada and Will Smith have done - is a choice that may work for some former spouses, but will not work for others. It is also important to note that it would almost certainly be against Canadian public policy to enforce a no-divorce pact if one existed in a domestic contract. In any case, they say that hindsight is 20-20 - and that cliche is perhaps no better reflected than on American rapper/former Scarborough Shooting Star JCole’s No Role Modelz - wherein he laments that: “I want a real love…that Jada and that Will Love”. With the benefit of hindsight at hand, we have it on questionable authority that Mr. Cole has removed those lyrics from his songbook and we of course recommend that if you are deciding to separate, or have separated from your spouse, it is important to consult a family lawyer in order to fully appreciate the benefits, consequences, rights and obligations that arise following separation and/or divorce.

For any questions related to this article or legal assistance regarding a family law related matter, we encourage you to contact Ryan C. Baker at 519.836.1510 x. 222.