Cameron Miranda
Common-law relationships are legally recognised in Canada, and when they break down, there are several important issues to consider, including children, money, property, and support. Unlike married couples, common-law couples do not have the same legal rights to property division. However, they may have rights to spousal support, property division, and inheritance under specific conditions. In Alberta, common-law relationships are referred to as adult interdependent relationships in legal proceedings. To be considered an adult interdependent relationship, partners must have lived together in a relationship of interdependence for at least three years or have entered into a legal agreement. When separating, common-law partners can create a separation agreement outlining how they will divide assets, establish child custody, and address other issues. It is advisable to seek legal advice to protect one's rights and interests during this process.
| Characteristics | Values |
|---|---|
| Legal recognition | In Alberta, common-law relationships are termed "adult interdependent relationships" in legal proceedings. |
| Criteria | Partners must live together for a certain period (typically 3 years) and/or demonstrate interdependence through financial or emotional support. |
| Separation process | No formal process or legal action is required for separation. However, it can be complicated due to legal and financial matters. |
| Property division | Common-law couples do not have the same legal rights as married couples regarding property division. Property is typically divided based on individual ownership, but can also be divided equally or with the help of a legal mediator. |
| Separation agreement | A signed agreement between partners can resolve disputes related to property division, child custody, and support matters. |
| Support obligations | Common-law partners may have rights to spousal support and child support upon separation. |
| Insurance | Obtaining and maintaining health, life, household, and auto insurance is a consideration during separation. |
| Taxes | Common-law partners are required to declare their status when filing taxes, as it affects eligibility for certain benefits. |
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What You'll Learn
Property division
In Canada, when a common-law couple separates, they can create a separation agreement that outlines how they will divide their assets, establish child custody, and address other issues related to their separation. Unlike married couples, common-law couples do not have the same legal rights to property division. Each partner in a common-law relationship is entitled only to whatever they brought into the relationship or acquired during it.
In Alberta, the term "adult interdependent relationship" is used in legal proceedings instead of "common law". To be considered a partner in an adult interdependent relationship, parties must have been living together in a relationship of interdependence for a continuous period of not less than three years, or have been living in a relationship of some permanence with a child, either by birth or adoption.
In the case of a common-law separation, a legal mediator can help divide property that was bought by both partners as a joint venture, such as a car or home. A separation agreement is a document that both partners need to sign to resolve disputes or conflicts that may arise after the separation. It is important to obtain independent legal advice before signing the agreement to ensure that rights and interests are protected.
In some cases, a common-law partner can make a claim for a constructive trust to remedy unjust enrichment if they can show that they were engaged in a joint family venture and that their partner is retaining a disproportionate share of the profits. Litigation in this area can be difficult and complex. It is recommended to seek legal advice as soon as possible after separation to understand your rights and obligations.
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Child custody
When it comes to child custody, common-law spouses have the same rights and obligations as married spouses. This includes the right to custody of the children and the obligation to financially support them. If both parents are unable to decide on who will have custody, the courts will determine custody based on the best interests of the children.
In some cases, the decision is straightforward: the children will remain in the home they lived in before the separation with the parent who stays in that home. However, this may not always be the best option for the children, and it is not the only option available. Children can live with the parent who has physical custody and spend time with the other parent through visitation schedules, or they can live in both homes through a shared living arrangement, spending specific durations of time (such as a week or a month) in each home.
Another option is a bird's nest arrangement, where one home becomes the 'family home' and the children remain there while the parents move in and out according to a schedule. If the children are 12 years or older, the court will consider their living preferences, but even in these cases, the children's needs should be put first, so taking their opinions into account can be helpful when making this decision.
To avoid disputes, it is important to create a specific schedule for holidays and other arrangements. A common method is to have the children spend certain holidays with one parent in odd years and the other parent in even years. It is also important to always communicate arrangements directly with your former partner, rather than through your children, as this can cause unnecessary conflict.
In cases where the children from a previous relationship of one partner have been living with the couple, the other partner may be considered a parent to those children as well, and may be required to pay child support.
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Financial disclosure
In Canada, common-law couples do not have the same legal rights to property division as married couples. However, they may have rights to spousal support, property division, and inheritance under specific conditions.
In Alberta, common-law relationships are termed adult interdependent relationships, and they are recognised by the family law system. To be considered an adult interdependent relationship, the couple must have been living together in a relationship of interdependence for at least three years or have entered into an adult interdependent relationship agreement.
When it comes to financial disclosure during separation, both parties must exchange complete and accurate financial information to ensure a fair and equitable division of assets and debts. This includes providing documentation of all assets and liabilities at the date of separation and marriage, as well as any assets that should be excluded, such as gifts or inheritances. Common-law partners in Alberta are required to provide full financial disclosure to each other annually during their period of separation. This typically includes statements of income, employment insurance, social assistance, pensions, and more.
It is important to note that failure to provide full financial disclosure may affect the validity of any separation agreement. If one party withholds financial information, the other party can take legal steps to obtain it, and the court may order the responsible party to pay the legal costs. Additionally, if non-disclosure is revealed after a final Property Settlement Order, the court may set aside the order.
To summarise, financial disclosure during the separation of a common-law partnership in Alberta involves both parties exchanging detailed financial information to ensure a fair division of assets and debts. This process is crucial for protecting the rights and interests of both individuals.
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Adult interdependent relationship criteria
In Alberta, the term "common-law spouse" has been replaced by "adult interdependent partner" (AIP) in legal proceedings. This term encompasses more than heterosexual common-law relationships; it includes same-sex relationships and non-conjugal persons living together in a relationship of interdependence.
The Adult Interdependent Relationships Act was enacted in 2003 to give people in non-marriage relationships some of the rights, benefits, and responsibilities of a marriage. The Act outlines two ways for a relationship to be recognised as an AIP:
- Both parties have entered into a written Adult Interdependent Partner Agreement.
- The parties are not related by blood or adoption and have lived together in a 'relationship of interdependence' for at least three consecutive years.
A 'relationship of interdependence' is defined as a relationship outside of marriage where both parties share emotional and economic responsibilities. This can include platonic relationships, such as two members of the same family, and same-sex or different-sex couples. It is important to note that a relationship does not have to be sexual or romantic to meet these criteria.
In terms of separation, adult interdependent partners can create a separation agreement that outlines how they will divide assets, establish child custody, and address any other issues related to their separation. Each partner must exchange financial disclosure to ensure all assets and debts are accurately disclosed, and then discuss the fair and equitable division of these.
If you are considering entering into an adult interdependent relationship or are currently in one, it is important to understand your legal rights and obligations.
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Separation agreements
In provinces like Nova Scotia, separation agreements are sometimes called 'Minutes of Settlement'. It is advisable to consult a family law lawyer to draft the agreement, ensuring all necessary sections are included and properly worded. Templates are often available, covering areas such as:
- Parenting arrangements: This includes child custody, access, and support matters.
- Support issues: Spousal support or partner support may be addressed, depending on factors such as financial benefit or detriment during the relationship.
- Division of property, assets, and debts: This can be a complex area, especially if there is jointly owned property. Common-law partners do not have the same automatic property rights as married couples, and each partner is typically entitled only to what they brought into the relationship or acquired during it.
Before signing a separation agreement, both partners should obtain independent legal advice to ensure their rights are protected. Once signed, the agreement can be filed with the court to make it legally binding. This is particularly important if there is a possibility of future disputes or conflicts.
In summary, a well-drafted separation agreement is a crucial tool to provide clarity, protect rights, and resolve potential conflicts during the challenging time of separating from a common-law partner.
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Frequently asked questions
A common-law relationship is a legally recognised union between two people who live together in a relationship that is like a marriage but has never been formally declared as one. Common-law partners are not legally married but are recognised by family law.
The requirements for a common-law relationship vary depending on the region. In Alberta, to be considered a partner in an adult interdependent relationship, parties must have lived together in a relationship of interdependence for at least three years or have entered into an adult interdependent relationship agreement.
There is no formal process required for common-law couples to separate, and no need for divorce. Common-law couples can dissolve their union at any time, but it is advisable to enter into a separation agreement as soon as possible to establish and clarify the rights and obligations of each party. This agreement should outline how assets will be divided, child custody and access, and any other relevant issues.
Key considerations when separating from a common-law partner include issues involving children, division of assets and property, and financial arrangements. It is important to seek legal advice to understand your rights and obligations and to ensure that the separation agreement is fair and reasonable to both parties.
