Anaya Nolan
Ending a common-law relationship can be a complicated process involving serious legal and financial matters. Common-law couples can separate at any time without requiring legal action, but they may need to navigate issues such as property division, spousal support, child support, and parenting arrangements. To protect their rights, couples can enter into a cohabitation agreement or separation agreement, outlining terms for the division of assets and addressing other relevant matters. Consulting a lawyer is advisable to understand one's rights and obligations during the separation process.
| Characteristics | Values |
|---|---|
| Legal requirements | No formal process or legal action required to separate |
| Property division | Common-law couples are not legally required to split property; property belongs to the person who bought it. However, they may choose to enter into a domestic contract such as a cohabitation or separation agreement that sets out their respective rights to property. |
| Spousal support | Common-law couples who cohabited for 3+ years or have children together may be entitled to spousal support. |
| Child support | Child support is determined the same way for married and unmarried couples, using the Child Support Guidelines. |
| Custody | Unmarried couples must apply for custody under the Children's Law Reform Act (CLRA). |
| Agreement | A separation agreement should be written by a lawyer and signed in front of a witness to be legal. |
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What You'll Learn
Division of property
In the case of common-law relationships, each partner is entitled only to what they brought into the relationship or acquired during it. This means that common-law couples are not legally required to split property acquired when they lived together.
However, if you feel that you have contributed extensively to the value of a certain asset that belongs to your partner, such as the family home, you can make a claim for a constructive trust to remedy unjust enrichment. To show unjust enrichment, you must demonstrate that you and your partner were engaged in a joint family venture and that your partner is retaining a disproportionately large share of the profits.
It is important to note that, unlike married couples, common-law partners do not have an equal right to possess the family home. The home belongs to the person who purchased it and whose name is on the title or lease. If you own the home, you have the legal right to ask your partner to leave, but it is generally not recommended unless you are concerned for your safety.
To protect your rights in a common-law relationship, you can sign a cohabitation agreement. This is a legal document that sets out the terms in the event of a separation, including the division of property, assets, and debts. It is important to have a cohabitation agreement signed as soon as possible, preferably before any issues arise. If you do not have a cohabitation agreement, you can create 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.
To understand your rights and responsibilities, it is strongly recommended to seek legal advice. Mediation or counselling services may also help you deal with problems and come to an agreement.
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Child custody and support
In determining custody, the court considers the best interests of the children, and there are options for how decisions about the children will be made between the parents. These include joint decisions, sole decisions, and divided decisions, where each parent has a say in specific areas. It is important to create consistency in both homes to lessen the impact of separation on the children.
If parents cannot agree on child custody and support, they may need to involve a third party, such as a parenting expert, mediator, or lawyer. Written discussions are preferable as they can be transferred more easily into a separation agreement and help manage disagreements. A separation agreement is a written contract between the separating partners, outlining the terms and conditions of their separation, including parenting arrangements, support issues, and property division.
In terms of financial support, child support payments are determined using Child Support Guidelines, which apply to both married and unmarried parents. Both parents have a legal duty to support their dependent children to the best of their abilities. Additionally, spousal support may be considered, taking into account factors such as financial benefit and disadvantage during the relationship.
It is recommended to seek legal advice to understand your rights and responsibilities fully. Each parent can have their own lawyer review the separation agreement before signing it, and mediation or counselling services can assist in reaching an agreement. In Canada, resources like the Law Society Referral Service can provide a referral to a family law lawyer for a free initial consultation.
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Spousal support
In Canada, spousal support is generally calculated the same way for common-law and married couples, although married couples would claim support under the Divorce Act. The laws governing spousal support for common-law couples vary across provinces and territories. For example, in some provinces, a common-law couple must live together for at least two or three years before either partner is eligible for spousal support. In Manitoba, common-law partners may seek an order for spousal support if they have lived together continuously for at least three years or have lived together for at least one year and have had a child together.
In Ontario, Part 3 of the Family Law 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 natural or adoptive children together. If a couple meets this definition, they may be entitled to spousal support or be obligated to pay their former partner spousal support.
The court considers a number of factors when deciding whether spousal support should be paid, including the needs and financial circumstances of both spouses. Additionally, the conduct of the partners regarding the matrimonial home may influence the court's award of spousal support. For example, if one partner is kicked out of the home, the court may take this into account when determining spousal support.
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Cohabitation agreements
A cohabitation agreement is a legally binding document that outlines how an unmarried couple will manage and organise their finances while living together and how money and property will be divided if the relationship ends. It can also specify who paid what and how and when the money is to be repaid.
However, in British Columbia, the Family Law Act has recognised 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.
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Separation agreements
In the case of common-law relationships, separation occurs when you and your partner begin living separately and are no longer in a romantic relationship. If you have a cohabitation agreement in place, it may already outline the terms of separation. If not, you can draft a separation agreement—a written contract between you and your partner to live apart on agreed-upon terms and conditions.
A separation agreement typically includes sections on parenting arrangements, support issues, and the division of property, assets, and debts. It is recommended that each party has their own lawyer review the agreement before signing it, as separation agreements can be difficult to change later.
In terms of property division, common-law couples are generally entitled only to what they brought into the relationship or acquired during it. The family home, for instance, belongs to the person who purchased it, and each partner must separately possess any property acquired during the relationship. However, if you contributed to property your spouse owns, you may have a right to part of it, which may need to be resolved in court.
If you have children together, either biological or adopted, or if your common-law partner's children from a former relationship have been living with you, you may be considered a parent to that child as well for the purposes of child support. Any parent can apply for custody of or access to a child. While married couples typically apply for custody under the Divorce Act, unmarried couples will apply under the Children's Law Reform Act (CLRA).
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Frequently asked questions
A common-law relationship is a romantic relationship where the couple lives together and are no longer 'partners'. Common-law couples are not legally married but have similar rights and obligations.
There is no formal process required for common-law couples to separate, and no need for divorce. However, the process can be complicated and involves serious legal and financial matters. It is recommended to enter into a separation agreement to establish and clarify the rights and obligations of each spouse.
A separation agreement is a written contract between the couple 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 are not legally required to split property acquired during their relationship. However, they may choose to enter into a cohabitation or separation agreement that sets out their respective rights to property. Furniture, household items, and other property belong to the person who bought them.
A cohabitation agreement is signed by common-law couples before separation and sets out terms for if the relationship ends. A separation agreement is signed after the couple decides to separate and live apart on certain terms.
