Common Law Separation Agreement: What It Means For You
When two people cohabit in a committed, marriage–like relationship, Canadian law defines it as a common law relationship. According to a recent survey, more and more couples in the country are opting for a common law relationship. Most of these couples do not understand their rights; in fact, most of them wrongly believe that they are entitled to the same laws as a married couple. The criteria needed to qualify for a common law marriage and the laws that apply to such an arrangement vary according to the territory or province.
Common Law Marriage is Treated Differently in Each Province in Canada
In Alberta, for instance, common law marriage does not exist; instead, the law recognizes a relationship called an adult interdependent partner, which applies to couples cohabiting for three years in a relationship of interdependence. In British Columbia, Saskatchewan, and Nova Scotia, a common law marriage applies to people cohabiting for two years, three years for couples in Manitoba, New Brunswick, and Ontario, and one year for couples in Newfoundland. Unlike other provinces in Canada, Quebec has never recognized a common law partnership as a marriage. Essentially, each province has its own laws concerning common law marriage; therefore, couples in such a relationship should understand the laws that apply to their territory.
Related: Common Law Ontario Guide: What Are Your Rights & Obligations?
Basic Elements of a Common Law Separation Agreement in Ontario
When common law couples separate, each person retains what they own and is responsible for their own debts; however, a couple should equally divide the value of property that is in both their names. A simple way of doing this is by one partner buying out the other partner’s share of the property, having come up with the actual value of the asset. Should the partners disagree on the value of the property, they may sell the asset and divide the proceeds of the sale equally.
When one partner feels aggrieved after the division of property, he or she may cite unjust enrichment and make a claim to the courts. Unjust enrichment applies when one partner benefits at the expense of the other, and if the plaintiff succeeds in proving it, then the court orders the other party to make reasonable restitution.
Read more on asset division and unjust enrichment in common law relationships.
Child Custody & Child Support Obligations
When it comes to the issue of children, Canadian law enforces the rights of children whether the parents are married or not. Laws regarding child support, custody and access are the same for couples in a legal, traditional marriage as well as those in a common law relationship.
Useful resources:
Spousal Support
Unlike in a regular marriage, the partner whose name does not appear in the matrimonial home’s title is not entitled to stay in the home after separation. When it comes to spousal support, the law varies depending on the province; however, the typical amount of time the couple should live together to qualify for spousal support in a common law relationship is three years. In addition, certain provinces have a time limit for applying for spousal support, unlike in regular marriages.
Common Law Separation Agreement
Couples in such an arrangement can draft a common law separation agreement on their own, as long as the contract does not contravene the laws of the territory. They may sit down and have a discussion or hire a mediator or legal professional to guide them through the discussion. A qualified family law lawyer can advise them on the laws of the province, as well as their rights.
When couples fail to reach a common law separation agreement, they may fight it out in court; however, the law requires couples with children to try mediation before getting the courts involved. No matter how long a couple in a common law relationship stay married, they will never enjoy the same legal status as a couple in a regular marriage.
Do You Need Help with Your Common Law Separation Agreement?
Our family law attorneys in Toronto, Markham and Oakville with extensive experience in common law relationship matters can guide you towards the best resolution. Schedule a free consultation to analyze your situation and find your best-fit separation lawyer.