Cameron Miranda
In Canada, a common-law relationship is defined as a couple who have lived together for at least one year in a conjugal relationship. While being legally married does not necessarily prevent you from being recognized as common-law, it does bring unique challenges and responsibilities that must be navigated carefully. For instance, you could be legally required to pay spousal support to both your legal spouse and your common-law partner, depending on the circumstances and the province’s family law rules. In Ontario, for example, you are defined as spouses, for support purposes only, if you are a cohabiting couple who has cohabited for long enough. However, bigamy laws are not triggered by a common-law relationship, and you cannot be married to two people.
Can you be common law while separated?
| Characteristics | Values |
|---|---|
| Common law while married | Yes, but you can't cohabit with both. |
| Common law definition | A couple who have lived together for at least a year in a conjugal relationship. |
| Common law in Canada | Common-law relationships are recognized by law in Canada, but the treatment of such relationships falls under provincial legislation and differs in each province. |
| Common law separation | Common-law couples can dissolve their union at any time without any required legal action. |
| Common law and child support | Common-law partners may be considered a parent to their spouse's child and be required to pay child support. |
| Common law and spousal support | Common-law partners may be entitled to or be required to pay spousal support. |
| Common law and property rights | Common-law partners do not have automatic property rights to their spouse's property. |
| Common law and separation agreements | Common-law couples can create separation agreements, outlining the terms of their separation, including the division of property and decisions regarding their children. |
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What You'll Learn
Common-law separation agreements
Separation of common-law couples involves addressing several important issues, including child custody, property division, and financial matters. While there is no formal process required for common-law couples to separate, the process can be complex and may involve serious legal and financial negotiations.
Common-law couples can benefit from creating a separation agreement to establish and clarify the rights and obligations of each spouse. This agreement can help ensure that both parties are treated fairly and can provide a template for settling a potential divorce. The issues covered in a common-law separation agreement are similar to those in a legal marriage separation agreement, including:
- Child custody and support: State law typically treats child custody similarly for married and unmarried couples, acting in the child's best interests. Unmarried couples may use informal custody agreements, but it is preferable to have a written agreement to avoid court intervention in case of a disagreement.
- Property division: Common-law couples may own property jointly or separately. In states that recognize common-law marriage, property division upon separation follows the same laws as for formally married couples. In other states, property division may be more complex, and it is advisable to consult a lawyer.
- Financial matters: Common-law partners do not have a right to support payments unless they agree on it. However, financial compensation may be possible if one partner was financially disadvantaged for the benefit of the other. It is important to consult a lawyer to understand the specific requirements for financial compensation.
It is important to note that the laws and requirements may vary depending on the state and individual circumstances. Seeking legal advice from a lawyer or mediator can help common-law couples navigate the complexities of separation and ensure their rights and obligations are clearly established.
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Child support obligations
In the case of separated or divorced parents, child support payments are usually made by the non-custodial parent to the custodial parent, who has primary custody of the children. The amount of child support is determined by a judge, who considers factors such as the number of children, each person's income, and the amount of time each parent spends with the children. Child support can also be sought by parents who are not married but are separated or even in non-marital situations.
The process of obtaining child support may vary depending on the state or country. In some states in the US, such as Nebraska, child support obligations can be mandated by the courts regardless of the parent's marital status. On the other hand, some states may not offer legal separation as an option, and child support may be incorporated into the divorce judgment. In Canada, child support obligations are recognised for all parents, including common-law parents, under the Family Law Act.
It is important to note that child support obligations can continue even after a child reaches the age of majority (18 or 19, depending on the jurisdiction) if they are still dependent due to illness, disability, or continuing their education. Additionally, child support payments are not taxed and are made from the payor's after-tax income.
In cases where the other parent fails to pay court-ordered child support, legal recourse is available. Enforcement actions can be filed with the family court, and sanctions, fines, or even jail time may be imposed if the parent is found to be in contempt of the order. To ensure compliance, tools such as the Maintenance Enforcement Program can be utilised to compel payment, including suspending the non-paying parent's license.
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Spousal support obligations
In Canada, spousal support is money paid by one spouse, former spouse, or common-law partner to the other after they separate or divorce. The simplest way to initiate spousal support is by way of a separation agreement under the guidance of a family lawyer.
In the Province of Manitoba, there are two steps in deciding whether spousal support should be paid. First, it must be determined if a person is entitled to receive spousal support. Second, if a person is entitled to spousal support, a calculation is completed to determine how much is appropriate and for how long it should be paid. Entitlement and quantum of support are calculated the same way for unmarried and married couples in Manitoba. The court considers a number of factors when deciding whether one spouse or common-law partner should pay support to the other, including the needs and financial circumstances of both spouses.
In Ontario, under the Family Law Act, you are always responsible for contributing to the support of your own children, whether you live with them or not. If you have entered into a common-law relationship but are not legally divorced from someone else, you are still responsible for any child and spousal support obligations you may have to your legal spouse. The courts will usually not reduce your support obligations to your first family because of responsibilities and obligations you have undertaken after separation.
According to the Family Law Act Part 3, which governs support obligations for unmarried spouses, or married spouses who are not pursuing a divorce, defines “spouse” as including cohabiting couples who have lived together for a period of at least three years, and cohabiting biological or adoptive parents. Common-law partners may seek an order for spousal support under The Family Law Act if they have registered their common-law relationship with the Vital Statistics Agency, or they have lived together for at least a year and have had a child together, or they have lived together continuously for at least three years. Once entitlement has been established, the court will consider the appropriate amount and duration of support, generally in line with the Spousal Support Advisory Guidelines.
It is important to note that bigamy laws are not triggered by a common-law relationship. However, if you are legally married and have a matrimonial home with your spouse, having a new common-law spouse does not change the fact that the property is a matrimonial home. Only a divorce, or a settlement in a legal separation agreement, can change the spouse’s right to live in, or have a share in the matrimonial home.
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Division of property
In Canada, common-law relationships are recognised differently in each province. In Ontario, for example, a couple is defined as common-law spouses for support purposes if they have been cohabiting for long enough.
Cohabiting, in this case, means living in a conjugal relationship, whether married or not. It is important to note that common-law couples are not entitled to the equalisation of their family property. This means that each partner in a common-law relationship is only entitled to what they brought into the relationship or acquired during it.
If you are in a common-law relationship and you separate, you may choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, that outlines your respective rights to property. It is important to have your own lawyer review any separation agreement before signing it, as it cannot be easily changed later.
If you and your spouse cannot agree on the terms of the contract or agreement, you may have to go to court and ask a judge to make a decision. You have six years from the day you separated, or two years from the day your divorce is finalised (whichever comes first), to go to court for a decision on the amount of any equalisation payment.
It is worth noting that if you are legally married and have a matrimonial home with your spouse, having a new common-law spouse does not change the legal rights of the other married spouse, even if the common-law partner has moved in. Only a divorce or a settlement in a legal separation agreement can change the spouse's right to live in or share the matrimonial home.
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Immigration and tax implications
Immigration Implications
In the US, the U.S. Citizenship and Immigration Services (USCIS) will interpret state law to decide whether a separation or divorce has ended a marriage. If you are facing a divorce or separation, it is wise to find a lawyer who understands how family law affects immigration. Whether and how your immigration status is affected depends on many factors.
If you are a conditional resident, you must be able to prove that you were married in good faith to a U.S. citizen or permanent resident for at least three years. If you get divorced before then, you will have to wait five years to apply for U.S. citizenship. If your marriage ends, you may lose your conditional resident status and become deportable.
If you used your spouse's status as a U.S. citizen or lawful permanent resident to immigrate within two years of your marriage, you may lose your status and become deportable. You will have to wait five years to apply for citizenship, versus the three years if you were still married. Once you are eligible to apply, USCIS will review your entire immigration history, and you will have to prove that your marriage was not fraudulent.
If you are not a U.S. citizen and are still married but living in a common-law relationship with someone else, you may be able to sponsor your common-law partner. You will need to show solid proof that the previous relationship has ended, and filing for divorce is recommended.
Tax Implications
When people go through a legal separation or divorce, their tax situation is affected. The IRS considers a couple married for filing purposes until they get a final decree of divorce or separate maintenance. Once the final decree of divorce or separate maintenance is issued, a taxpayer will file as single, starting for the year it was issued, unless they are eligible to file as head of household or they remarry by the end of the year.
If you are considered "unmarried" by tax law due to a decree of separation maintenance, you may file as "Single" or "Head of Household," provided you meet the conditions of having a dependent and paying more than half of the household expenses. If you have a child with your spouse, you will need to decide which parent gets to claim the child as a dependent.
By filing separately, you lose the ability to claim certain tax credits such as for higher education. Filing jointly can result in a lower tax bill but means you are both responsible for any taxes due, including penalties and interest.
In Canada, you are obligated to inform the Canada Revenue Agency (CRA) of any changes to your marital status by the end of the month following the change. The CRA will calculate the amount each parent is entitled to based on their adjusted family income as determined post-separation or divorce. Each parent will receive 50% of that amount as their adjusted benefit.
In a divorce, each spouse is normally entitled to an equal share of the family assets and property, and one spouse may be required to make an equalization payment to the other. Generally, there is no recognized gain or loss on the transfer of property between spouses or former spouses if the transfer is due to a divorce.
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Frequently asked questions
Yes, you can be in a common-law relationship while separated. However, you cannot cohabit with both your legal spouse and your common-law partner. If you are legally married, you must accurately declare your marital status to the CRA.
A common-law relationship is a couple who have lived together for at least one year in a conjugal relationship.
Common-law couples can dissolve their union at any time, with no required legal action. However, if there are children and jointly-owned assets involved, the separation can be complicated. Unlike married couples, common-law partners do not have equal rights to possess the matrimonial home.
If you are legally married and in a common-law relationship, you may be required to pay spousal support to both your legal spouse and your common-law partner.
