Gavin Howe
Unlike married couples, common-law couples do not need a court decision to make their separation official. However, it is strongly recommended that you have a lawyer write your agreement. Couples in a common-law relationship can sign a cohabitation agreement, which is a similar document to a marriage contract. These agreements can set out terms if the relationship ends, but they cannot dictate who will have decision-making responsibility or parenting time with respect to any children. Both parties must sign the agreement in front of a witness, who must also sign the contract/agreement. Once signed, the couple must follow what it says. If you do not have a cohabitation agreement, you can make a separation agreement when you separate from your partner. This is a written contract between you and your partner to live apart on certain terms and conditions. Separation agreements usually include sections on parenting arrangements, support issues, and the division of property, assets, and debts.
| Characteristics | Values |
|---|---|
| Legal separation | Occurs when you and your ex, married or common-law, decide to live apart |
| Separation agreement | A written contract between you and your partner to live apart on certain terms and conditions |
| Separation agreement sections | Parenting arrangements, support issues, and the division of property, assets, and debts |
| Separation agreement writer | Family law lawyers |
| Separation agreement review | A lawyer or notary |
| Separation agreement signing | In front of a witness who will also sign |
| Separation agreement filing | Take your agreement to a family courthouse to put into your court file with the clerk at the court counter |
| Separation agreement filing fees | None |
| Separation agreement changes | Negotiate changes in writing and signed in front of a witness |
| Common-law spousal support | Common-law partners may be entitled to spousal support if they have cohabited continuously for 3 years or more or have children and one partner is in a less financially advantageous position |
| Common-law property division | Common-law couples are not legally required to split property acquired when they lived together, but they may choose to enter into a domestic contract such as a cohabitation agreement or separation agreement that sets out their respective rights to property |
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What You'll Learn
Separation agreements and legal requirements
Separation agreements are written contracts between partners to live apart on agreed terms and conditions. These agreements usually include sections on parenting arrangements, support issues, and the division of property, assets, and debts.
In Canada, common-law couples do not need a court decision to make their separation official. They can settle all the issues that arise when they break up without going to court. However, it is recommended to seek legal advice to understand your rights and responsibilities. Mediation or counselling services may help come to an agreement. Once an agreement is reached, a lawyer or notary can help ensure that your rights and your partner's rights are respected.
In Ontario, common-law couples are not legally required to split property acquired during their relationship. However, they may choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, outlining their respective rights to property. The home belongs to the person who purchased it and whose name is on the title or lease. If the home is jointly owned, each partner is generally entitled only to what they brought into the relationship or acquired during it.
In Nova Scotia, you must have lived with your partner for at least two years or have a child together to apply for spousal support under the Parenting and Support Act. Both married and unmarried couples can apply for spousal support, and it is recommended to speak with a lawyer to understand your entitlements.
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Property division and ownership
Unlike married couples, common-law couples are not entitled to the equalization of their family property. Each partner in a common-law relationship is entitled only to whatever they brought into the relationship or acquired during it. The family home is treated like any other asset and belongs to the person who purchased it or to both partners if they purchased it together.
If you have been in a long common-law relationship and feel that you have contributed extensively to the value of a certain asset that belongs to your partner—a home, pension, or savings account, for example—and that it is unjust for your spouse to retain the full value of that asset, you are not without recourse. While a common-law partner is not automatically entitled to equal property division or to share the family home, you can make a claim for a constructive trust to remedy unjust enrichment. A constructive trust gives the beneficiary a right to property in a particular asset, such as the matrimonial home. To show unjust enrichment, you will have to demonstrate that you and your partner were engaged in a joint family venture and that your partner is retaining a disproportionate share of the profits of that venture.
Unjust enrichment claims are very fact-specific, and an experienced lawyer will be able to make the arguments necessary to support your claim. It is important to bring a trust claim or seek legal advice regarding that claim as soon as possible after separation. If you do not bring a claim within two years of the date of separation, the other party could successfully argue that the limitation period has expired, and you are therefore barred from bringing your claim.
If you and your spouse agree, you can divide your property in any way you want in a separation agreement. Each spouse should have their own lawyer look over the separation agreement before signing it. Separation agreements are written contracts between partners to live apart on certain terms and conditions and usually include sections on parenting arrangements, support issues, and the division of property, assets, and debts. While you can draft your own separation agreement, it is strongly recommended that you have a lawyer write it.
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Spousal support
In the context of common-law relationships, spousal support refers to the payment of money by one spouse to the other after separation or divorce. The availability and amount of spousal support depend on several factors, which vary depending on the jurisdiction.
In Texas, for instance, common-law spouses have the same rights as couples with a marriage license, including the right to seek spousal support. Factors that a judge will consider when determining spousal support include the duration of the marriage, the resources and earning capacity of each partner, financial and non-financial contributions to the household, and the age and health of each partner.
In Canada, spousal support may be awarded to common-law couples who have cohabited continuously for at least three years or who have children together. The court will consider factors such as whether one partner benefited financially from the relationship while the other did not. Additionally, the availability and amount of spousal support will depend on the specific circumstances of each case, including the financial needs and resources of both parties.
It is important to note that the laws governing spousal support for common-law couples may vary depending on the state or province, and it is always advisable to seek legal advice from a lawyer familiar with the relevant laws.
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Child support and custody
When it comes to child support and custody, the laws vary depending on the location. Here is some information regarding child support and custody for common-law partners in different jurisdictions:
Ontario
In Ontario, if a common-law partner has children from a previous relationship who have been living with the couple, they may be considered a parent to that child for child support purposes. Anyone deemed by the court to have acted as a parent ("in loco parentis") may be required to pay child support. Any parent can apply for custody or access to their child.
Married couples going through a divorce would typically apply for custody under the Divorce Act, whereas unmarried couples, including common-law partners, would apply under the Children's Law Reform Act (CLRA). The CLRA applies to cohabiting couples who separate, couples with children who have never cohabited, and married couples who separate but do not seek a divorce.
It's important to note that common-law partners do not have equal rights to possess the family home, unlike married spouses. The home belongs to the person who purchased it or rented it. However, if you own the home and wish to remove your common-law partner, it is generally not recommended unless there are safety concerns. The court may view this unfavourably, especially if your partner is financially disadvantaged.
Nova Scotia
In Nova Scotia, family law governs separation agreements, and it is strongly recommended to consult a lawyer when drafting one. These agreements typically include sections on parenting arrangements, support issues, and the division of property, assets, and debts. Both parties should seek independent legal advice to ensure their rights and responsibilities are understood and addressed in the agreement.
Regarding spousal support, in Nova Scotia, you must live with your partner for at least two years or have a child together before applying for spousal support under the Parenting and Support Act. Various factors are considered when determining spousal support, including financial benefits and disadvantages during the relationship.
Texas
Texas law establishes that mothers and fathers have the same rights regarding their children. In the event of a divorce, Texas law presumes that parents should be "joint managing conservators," sharing decision-making responsibilities for the child. However, if there is family violence or an absent parent, one parent may be named the "sole managing conservator."
California
In California, parenting plans outline child custody and parenting time, also known as visitation. These plans must be in the best interest of the children and address legal custody (decision-making) and physical custody (living arrangements). Until a court order is in place, both parents have the same rights and can make decisions about their children.
General Recommendations
It is always advisable to seek legal advice when dealing with child support and custody matters. Mediation or counselling services can also help separating couples reach agreements and resolve issues related to parenting, health care, education, and living arrangements. Additionally, creating a separation agreement can help outline the terms and conditions of living apart, including parenting arrangements.
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Seeking legal advice
If you are in a common-law relationship and are considering separation, it is important to seek legal advice to understand your rights and responsibilities. Here are some key considerations:
Understanding Common-Law Separation:
Firstly, it is important to understand that common-law couples are not legally required to obtain a court decision to make their separation official. Unlike married couples, common-law partners can settle issues arising from their breakup without going to court. However, it is still advisable to consult a lawyer or notary to ensure that your rights are protected.
Property Division:
Common-law couples are not automatically entitled to an equal division of property like married couples. Each partner is generally entitled only to what they brought into the relationship or acquired during it. If you contributed to property owned by your partner, you may have a right to a portion of it, but this may require court intervention. Common-law couples can also choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, to outline their respective rights to property.
Spousal Support:
If you and your partner have cohabited continuously for at least three years or have children together, you may be entitled to spousal support or be obligated to pay spousal support. This is outlined in Part 3 of the Family Law Act. It is important to speak with a lawyer to understand your specific entitlements or obligations regarding spousal support.
Child Support and Custody:
If you or your partner have children from a previous relationship who have been living with you, you may be considered a parent to that child for child support purposes. Any parent can apply for custody or access to a child. Unmarried couples will apply under the Children's Law Reform Act (CLRA), which governs custody and access arrangements for cohabiting couples who separate. Mediation services can also help couples come to an agreement regarding parenting arrangements.
Separation Agreements:
While not mandatory, creating a separation agreement can help outline the terms of your separation, including parenting arrangements, support issues, and the division of property, assets, and debts. It is strongly recommended to consult a family law lawyer when drafting a separation agreement to ensure it is comprehensive and accurate. Both parties should obtain independent legal advice to ensure the agreement is fair and enforceable.
In summary, while common-law separation does not require the same legal processes as a divorce, seeking legal advice can help protect your rights and ensure a fair resolution. Each province and territory may have specific laws and processes, so consulting a lawyer in your jurisdiction is crucial.
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Frequently asked questions
A separation agreement is a written contract between you and your partner to live apart on certain terms and conditions. It usually includes sections on parenting arrangements, support issues, and the division of property, assets, and debts.
Common-law couples don't need a court decision to make their separation official, but it is strongly recommended to have a lawyer write your agreement. Family law lawyers will have templates that include the sections you need for your agreement.
A separation agreement usually includes sections on parenting arrangements, support issues, and the division of property, assets, and debts. It is important to note that unlike married couples, common-law couples are not legally entitled to the division of property.
After drafting a separation agreement, both parties should keep an original signed version of the agreement. You should then sign the agreement in front of a witness who will also sign. You can then complete Form 26B: Affidavit for Filing Domestic Contract or Paternity Agreement. Take your agreement and Form 26B to a family courthouse to put into your court file with the clerk at the court counter.
