Can sex with your ex de-rail your divorce?

Having sex with your separated ex may have consequences that you didn’t anticipate.

According to one report I read last week, a New Brunswick judge rejected a couples’ separation on the basis that the couple had engaged in sex during the period of separation.

Apparently this was, despite the fact that the couple had agreed that it was “just sex.”  In other words, clearly there was no intention on the part of either party to “reconcile” and rescue their marriage.

Here in BC one question which is mandatory for lawyers to ask divorcing clients is whether there is any possibility of reconciliation.  Only if the answer is “no” is the divorce supposed to proceed.

Notwithstanding, I’m often asked by some of my clients, whether casual sex with their ex during the period of separation essentially restarts the required 1 year period of separation.  Until now, I’ve responded with a “no,” much to the relief of the client!

The New Brunswick case raises issues surrounding what it means to be separated, since for the majority of divorces, the parties rely on a one year period of separation, (ie. not living together as a man and wife, for a period of at least 1 year), before obtaining a divorce.

Frequent, or even not so frequent, sex with your ex could potentially be a factor in deciding whether you and your ex are actually separated or not, and if so, for how long.

On the other hand, if you’re having frequent sex with your ex, (SWB – separated with benefits), you just might want to consider reconciliation after all!