Can a husband and wife engage in sexual intercourse during a separation period?

Saskatchewan, Canada


The following excerpt is from Boechler v. Boechler, 1976 CanLII 917 (SK QB):

Looking at the definition of cohabitation in Wheatley v. Wheatley, supra, it seems clear that a husband and wife engaging in acts of sexual intercourse are giving themselves to one another and that such is a very real form of cohabitation, wherever it may take place. This is exactly what occurred between the parties in the case at bar when they would get together to discuss the children of their union on at least four or five admitted occasions (there may well have been more) during the period of time when they were supposed to be living separate and apart from one another. They were certainly on those occasions reconciled sufficiently to engage in the marital act. Such a degree of intimacy or of reconciliation is never to be taken lightly in my estimation. Moreover, such conduct is hardly consistent with a marriage that has permanently broken down. To hold otherwise would be to allow husbands and wives to play fast and loose and render this section of the statute utterly meaningless. The ground for divorce in this instance has not been proved and the petition stands dismissed.

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