Anaya Nolan
The process of ending a common-law marriage varies depending on the jurisdiction. In some places, such as British Columbia, common-law partners who have lived together for two or more years have the same rights and obligations as married couples upon separation, including division of property, parenting arrangements, and potential spousal support. However, in other places like Ontario, common-law partners do not have the same legal rights and obligations as married couples during separation. When it comes to ending a common-law marriage, it is important to consult with a lawyer to understand the specific laws and rights applicable in your jurisdiction. Additionally, determining the validity of a common-law marriage may be necessary before initiating the separation process, as some states require couples to register their union.
| Characteristics | Values |
|---|---|
| Location | British Columbia, Alberta, Ontario |
| Common-law marriage definition | Living together in a marriage-like relationship for two or more years |
| Separation requirements | In Alberta, a clear intention to end the relationship and living "separate and apart." In Ontario, no formal process or legal action is required. |
| Property division | In BC, each spouse is entitled to 50% of the growth in equity of assets and debt incurred during the relationship. In Ontario, each partner is entitled to what they brought into the relationship or acquired during it. In Alberta, if separated after Jan 1, 2020, the division falls under the Family Property Act, affording similar rights as married couples. |
| Spousal support | May be awarded to a common-law partner under certain circumstances in BC and Alberta. In Ontario, spousal support may apply after cohabiting for three years or more or if there are children together. |
| Child support and custody | Both married and unmarried parents have the same child support and custody rights and responsibilities. |
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What You'll Learn
Common-law marriage validity
The validity of common-law marriage varies depending on the jurisdiction. In some places, common-law marriage is not legally recognized at all. In the United States, for example, only a few states recognize common-law marriages, and even then, it is typically only when determining inheritance after one party's death. Other states may not contract common-law marriages within their borders but will recognize such unions if they were legally established in a different state. For instance, California does not recognize common-law marriages, but it will acknowledge a common-law marriage if the couple obtained it in a state that does.
In Canada, the term "common-law marriage" is often used to refer to relationships between any two persons who are not married but live together. While common-law marriage is not recognized in all provinces, the rights of common-law partners are recognized in some, such as British Columbia. Here, the Family Law Act treats common-law partners on par with married couples in matters of property and debt division upon separation. Couples who have cohabited for two years or more are entitled to a 50/50 split of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts.
In Ontario, however, the Family Law Act's property-sharing regime does not apply to common-law partners. Each partner is entitled only to what they brought into the relationship or acquired during it. Part 3 of the Act, which governs support, applies to common-law couples who have cohabited continuously for three years or more or who have cohabited in a relationship of permanence and have children together.
Historically, common-law marriages were more widely recognized. In medieval Europe, canon law recognized as a valid marriage one in which the parties stated they took each other as husband and wife, even without witnesses. The Fourth Lateran Council (1215) forbade clandestine marriages, requiring all marriages to be announced in a church by a priest. The Council of Trent (1545-1563) introduced more specific requirements, ruling that marriages would only be valid if witnessed by the parish priest, the local bishop, or their delegates. England abolished clandestine or common-law marriages in the Marriage Act of 1753.
Today, some countries, like Australia and Ireland, do not recognize common-law marriage, but they have laws that grant certain rights to unmarried cohabitants.
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Separation agreements
In the context of common-law marriage, separation agreements are legal documents that outline the terms and conditions of the separation. These agreements are designed to protect the interests of both parties involved in the common-law relationship and address various issues that may arise during the separation process. While the specific laws and requirements may vary depending on the province or territory in Canada, here is some general information about separation agreements in the context of a common-law marriage after a two-year separation:
Property and Debt Division
In British Columbia, the Family Law Act recognises the legal rights of common-law partners on par with married couples when it comes to property and debt division upon separation. Couples who have cohabited for two years or more are entitled to an equal division of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts. This includes a 50/50 split of the growth in equity in each spouse's assets, such as joint bank accounts, bills, and expenses incurred together.
Spousal Support
Spousal support may be awarded to a common-law partner under certain circumstances. In British Columbia, a common-law partner may be entitled to spousal support upon separation, similar to married couples going through a divorce.
Child Support and Custody
Both common-law and married parents have a legal duty to support their dependent children to the best of their abilities. Child support and custody arrangements are determined similarly for both common-law and married parents. These arrangements are calculated using the Child Support Guidelines and can include children from former relationships who have been living with the couple.
Legal Considerations
While common-law couples in Ontario do not need to follow a formal separation process, it is recommended to seek legal advice from a lawyer specialising in common-law separations. A lawyer can guide you through the complexities of dividing assets, determining parental responsibilities, and drafting a comprehensive separation agreement that protects your rights and interests.
It is important to note that the information provided here is general in nature and may not cover all the specific considerations of your situation. For personalised advice, consulting a family law professional in your province or territory is highly recommended.
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Property division
In the case of a common-law marriage, there is no such thing as a "common-law divorce". However, when it comes to property division, the process can be complex and varies depending on the region.
In British Columbia, the Family Law Act recognises the legal rights of common-law partners on par with married couples in matters of property and debt division upon separation. Couples cohabiting for two years or more hold the same legal rights as married couples regarding property and debt division. This includes a 50/50 split of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts.
In Ontario, there is no legal requirement for common-law couples to divide property upon separation. The Family Law Act (FLA), which governs the equal division of financial gains during a marriage, only applies to married couples. Each partner in a common-law relationship is entitled to what they brought into the relationship or acquired during it. However, common-law couples may choose to enter into a domestic contract, such as a cohabitation or separation agreement, to outline their respective rights to property.
In the United States, the process of property division in a common-law marriage depends on the state. Nine states follow the community property system, where all assets and debts acquired during the marriage are considered joint property and will be divided equally in the event of a divorce. These states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Alaska, South Dakota, and Tennessee have elective community property laws, allowing couples to opt into this division system. All other states follow the equitable distribution system, where assets and earnings are divided fairly but not necessarily equally.
It is important to note that, regardless of the region, determining the division of property in a common-law marriage can be complex, especially if the couple has lived together for an extended period and has jointly acquired assets. Seeking legal advice from a lawyer specialising in family law or consulting the relevant provincial or territorial Ministry of Justice/Attorney General is recommended to understand the specific laws and processes applicable to the specific situation.
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Child custody
In the case of a common-law marriage, the separation process can be complicated, especially when children are involved. While there is no formal process or legal requirement to dissolve a common-law marriage, it is crucial to address child custody early and develop a comprehensive parenting plan. This plan should outline legal and physical custody arrangements, including a parenting time schedule, co-parenting rules, and provisions for making child-rearing decisions.
In British Columbia, the Family Law Act recognises the rights of common-law partners regarding child custody and support, similar to married couples. The Act governs the rights and responsibilities of unmarried individuals during separation, ensuring that parental responsibilities and child support obligations are determined.
To protect the rights of both parents and children, it is recommended to seek legal advice and create a separation agreement that includes child custody provisions. This agreement can provide stability and reassurance for children, outlining when they will spend time with each parent. While an informal, verbal agreement is possible, it is not recommended as it can be unilaterally changed. A written agreement allows for adjustments and provides crucial information for divorce proceedings, if necessary.
If parents cannot agree on child custody, they can file a case with the court. The court will decide on primary custody, visitation rights, and child support, considering the "best interests of the child". Factors such as the child's established relationships, community ties, and the ability of each parent to provide care are taken into account. Courts generally prefer for parents to make a mutual agreement, but they will intervene if necessary to ensure the child's well-being.
It is important to note that child custody arrangements are not permanent and can be modified by the court if substantial changes in circumstances occur. Additionally, long-distance custody arrangements may be considered, but the court will evaluate the impact on the child and whether the move serves a good purpose, such as improved living conditions or better job opportunities.
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Spousal support
In Canada, spousal support is dealt with in Part III of the Family Law Act, which defines a "spouse" as either a married spouse or two persons who have cohabited for at least three years or are biological or adoptive parents. The Divorce Act sets out the spousal support rules for married couples who divorce, and these rules apply across Canada. Provincial or territorial laws govern unmarried couples in common-law relationships and married couples who separate but do not divorce. Under the Divorce Act, spousal support is most likely to be awarded when there is a significant difference between spouses' incomes after separation. However, this is not always the case, as a court may decide that the lower-income spouse is not entitled to support if they have substantial assets or if the income difference is unrelated to the relationship. It's important to note that common-law partners in Quebec are not entitled to spousal support upon separation under provincial law.
The calculation of spousal support is one of the most complex areas of family law. Many factors must be considered to determine a fair and appropriate amount, including the financial positions of both spouses, ongoing responsibilities for childcare, and any previous support orders or agreements. The Spousal Support Advisory Guidelines provide a starting point for determining the quantum and duration of support, offering ranges for both support amount and duration. These guidelines are based primarily on the length of cohabitation and are used by most Canadian courts and family law professionals. However, a court may choose to deviate from these guidelines in specific cases.
It is essential to consult a family law professional when dealing with spousal support due to its complexity. Additionally, determining the method of spousal support payments can have significant tax implications, so seeking advice from a lawyer or accountant is recommended.
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Frequently asked questions
A common-law marriage is a marriage-like relationship where the couple lives together for a period defined by their state and intends to live as a married couple. They must portray themselves as married publicly. Common-law marriages are only recognised in a few states.
In British Columbia, common-law partners have the same legal rights as married couples regarding property and debt division. This includes a 50/50 split of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts. Common-law partners are also entitled to spousal support under certain circumstances.
The first step is to determine if your common-law marriage was valid. If a court determines that your common-law marriage is valid, you will need to follow the steps to obtain a traditional divorce. You can begin the divorce process by filing a formal petition with the court where you live.
