Alimony Rights For Common-Law Spouses: What You Need To Know

The rights of common-law spouses differ from those of married couples, especially when it comes to alimony or spousal support. While spousal support is not an automatic right in the event of a marriage breakdown, a spouse may be entitled to support if they can demonstrate financial need, entitlement to compensation for economic consequences, or a contract outlining support obligations. Common-law spouses may also be entitled to spousal support upon separation, but the process can be complicated due to the lack of legal protections afforded by marriage. In Ontario, for example, common-law partners have rights to spousal support, but eligibility can be challenging to prove. In other Canadian provinces and territories, a common-law partner's eligibility for spousal support may depend on the duration of their relationship before separation.

Common-law spouse rights in Ontario

In Ontario, a couple is considered to be in a common-law relationship if they have lived together for at least three years or have a child together and have lived together in a relationship of some permanence. While common-law spouses do not have the same property rights as married couples, they are covered by many of the same laws and protections afforded to married partners.

Property Rights

Common-law spouses may be entitled to property (or compensation) for a property acquired during the relationship. For instance, if you contributed toward purchasing a home, you may be entitled to a share of the home proportionate to your contribution. Alternatively, you may be entitled to property if you made non-financial contributions to the relationship, such as raising children.

Cohabitation Agreement

Common-law couples can sign a cohabitation agreement, a document that outlines the entitlements and responsibilities of both parties upon separation. This agreement can help establish property rights and outline how assets will be divided. However, it is important to note that a cohabitation agreement is not a substitute for a will and does not cover estate planning.

Spousal Support

Common-law spouses in Ontario have the same rights to spousal support as married couples. If a common-law relationship ends, arrangements for spousal support can be determined through a cohabitation or separation agreement. If the parties cannot agree, the court may intervene to decide on the amount, period, and type of spousal support based on factors such as financial need and ability to pay.

Child Custody and Support

Common-law couples have the same rights and obligations regarding child custody, access, and support as married couples. If the parents cannot agree on custody arrangements, the court will decide based on the best interests of the children.

Estate Planning

In the event of the death of one spouse, the surviving common-law spouse is not automatically entitled to inherit from the estate if there is no will. Therefore, it is essential for common-law spouses to have a will and estate plan in place to ensure the protection of their partner. Under the Canada Pension Plan, a surviving spouse, regardless of marital status, is entitled to their deceased spouse's pension.

Eligibility criteria for spousal support

The eligibility criteria for spousal support, also known as spousal maintenance, can be complex and vary based on location. In general, spousal support is money paid by a higher-earning spouse to a lower-earning spouse after a separation or divorce. This support aims to prevent financial hardship for the recipient spouse, help them become financially self-sufficient, and maintain their standard of living. Here are the key eligibility criteria for spousal support:

Legal Recognition of Relationship

The first criterion is the legal recognition of the relationship. In some jurisdictions, common-law relationships are not legally recognized for spousal support purposes. In such cases, common-law partners may need to take additional steps to establish their eligibility for spousal support, as they are not entitled to the same rights as legally married couples.

Financial Need and Ability to Pay

The court will consider whether the spouse seeking support has a financial need and whether the other spouse has the ability to pay. Factors such as income, assets, and expenses will be evaluated to determine if the recipient spouse lacks sufficient property or income to meet their basic needs. The court may also consider if the requesting spouse had responsibilities during the relationship that prevented them from building a career and caused an economic loss.

Duration of Marriage

In certain jurisdictions, the duration of the marriage is a factor. For example, in Texas, one of the criteria for spousal maintenance is that the marriage must have lasted for at least ten years.

Other Factors

Other factors that may impact eligibility include disability or health conditions of the recipient spouse and whether they have experienced family violence within a specified period before filing for divorce.

It is important to note that the eligibility criteria for spousal support can vary depending on the specific laws and regulations of the jurisdiction. Consulting with a family law attorney or legal professional is strongly recommended to understand your unique circumstances and rights regarding spousal support.

Separation agreement

Alimony, also called spousal support, is a court-ordered payment from one spouse to another. The purpose of alimony is to ensure that each spouse can meet their financial needs during and after the divorce process.

In the United States, alimony or separate maintenance payments are deductible by the payer spouse and includible in the recipient spouse's income if paid under a divorce or separation agreement executed before 2019. If the agreement was executed after 2018, or before 2019 but later modified to include the repeal of alimony payment deductions, alimony payments are not deductible. Alimony payments are typically made in cash, including checks or money orders, and are not treated as child support or a property settlement.

In Canada, common-law couples are not eligible to receive a divorce under the federal Divorce Act as they are not legally married. This means that upon separation, there may be no automatic entitlement to spousal support, and parties may be required to prove their eligibility. Common-law partners do have rights when it comes to spousal support, but the process of proving eligibility can be complicated.

In Ontario, there are certain requirements to be considered a legal common-law couple. To receive spousal support, one must demonstrate at least one of three requirements:

• They had responsibilities while in the relationship that prevented them from building a career, resulting in economic loss.
• The separation left them in need of financial support, and the other spouse has the means to provide it.
• They are compensatory, based on need, or a contractual obligation.

The simplest way to initiate spousal support is by creating a separation agreement under the guidance of a family lawyer. This requires both partners to agree on the amount and terms of separation. Lawyers can use specialized software to calculate spousal support obligations that consider both current and future needs. The Spousal Support Advisory Guidelines provide a range and duration for monthly support payments, but spouses are also free to negotiate a lump-sum payment instead.

If a couple cannot agree on spousal support payments, a judge will review the relevant proof of entitlement and determine the amount and period of payment.

Spousal support obligations

In Ontario, spousal support obligations for common-law couples can be complex due to the lack of legal protections afforded to married couples. Common-law spouses do have rights to spousal support, but eligibility can be challenging to prove. To establish entitlement, common-law partners must demonstrate at least one of three requirements:

• They had responsibilities during the relationship that prevented them from building a career, resulting in economic loss.
• They require financial support after the separation, and their spouse has the financial means to provide it.
• They have a child together and were in a relationship of some permanence.

The Court will consider whether one spouse needs financial support and whether the other spouse has the ability to pay. If both spouses have similar incomes, the Court generally will not order spousal support. The federal Spousal Support Advisory Guidelines offer a formula for courts to determine how the parties may share after-tax disposable income, but each case is unique, and several factors must be considered.

To receive spousal support, common-law partners may need to prove their eligibility and negotiate a separation agreement, which can be stressful and complicated. It is essential to consult with a lawyer to understand better one's rights and obligations regarding spousal support in common-law relationships.

Child support and spousal support

In Ontario, spousal support is typically paid by the higher-earning spouse to the lower-earning spouse after a separation or divorce. The purpose of spousal support is to help the recipient spouse become financially self-sufficient, prevent financial hardship, share the cost of children, maintain a standard of living, or compensate for financial disadvantages during the relationship.

To receive spousal support in Ontario, common-law partners must meet specific requirements. They need to demonstrate at least one of three criteria: assuming responsibilities during the relationship that hindered career advancement and resulted in economic loss; experiencing financial need due to separation, and the other spouse having the means to provide support; or the existence of a financial disadvantage compared to the other spouse.

Regarding child support, both parents, regardless of their marital status, are responsible for financially supporting their children. In common-law relationships, if one partner enters the relationship with a child from a previous relationship and the other partner assumes a parenting role, that person may be required to pay child support. This is known as "standing in loco parentis." The court considers various factors, including the length of time the partner has lived with the child, their involvement in discipline and important meetings, and whether they contributed financially to the child's upbringing.

The amount of child support to be paid is determined by the income of the non-custodial parent and the number of children involved. In Ontario, common-law couples can refer to the Ontario Child Support Guidelines to estimate the likely amount of child support payments.

Frequently asked questions