Gavin Howe
Unlike married couples, common-law couples can separate without a court decision. However, the separation process can be complicated if the couple has children or jointly-owned assets. In British Columbia, common-law couples who have lived together for two or more years have the same legal rights as married couples regarding property and debt division, with a 50/50 split of assets and liabilities. In Ontario, common-law couples are not legally required to divide property, but they may choose to enter into a domestic contract such as a cohabitation agreement or separation agreement. To understand your rights and obligations during a common-law separation, it is recommended to seek legal advice.
| Characteristics | Values |
|---|---|
| Spousal support | Common-law partners may be entitled to spousal support or be obligated to pay their former partner spousal support. |
| Child support | Child support is determined the same way for married and unmarried parents. Anyone whom the court finds to have acted as a parent to a child may be required to pay child support. |
| Property division | Common-law couples are not legally required to split property acquired when they lived together. However, in British Columbia, common-law partners are entitled to an equal share of property acquired during the relationship, similar to married couples. |
| Legal process | Common-law couples are not required to follow a formal process or obtain a court decision to make their separation official. However, they may seek legal advice, mediation, or a separation agreement to resolve issues involving children, money, and property. |
| Financial compensation | Some financial compensation may be possible for common-law partners, such as when one partner was financially disadvantaged for the benefit of the other. |
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What You'll Learn
Child support and custody
Any parent can apply for custody or access to their child. Married couples going through a divorce will apply for custody under the Divorce Act, while unmarried couples will apply under the Children's Law Reform Act (CLRA). Common-law spouses have the same rights and obligations as married spouses to care for their children, including custody and financial support rights.
If parents cannot agree on child custody, the courts will decide based on the child's best interests. Various factors are considered, such as the child's age, relationship with each parent, stability of the home environment, and parental involvement. There are different types of custody arrangements, including sole custody, joint custody, and shared custody. It is important to create a consistent environment for the children in both homes and ease their transition between homes.
Child support arrangements can be modified due to significant changes in circumstances, such as income or employment status. Parents may be required to contribute to healthcare and educational expenses in addition to basic child support, as outlined in the agreement. Open communication, cooperation, and prioritising the well-being of the children are essential during the legal separation process.
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Property division
In British Columbia, the Family Law Act recognises the legal rights of common-law partners on par with married couples regarding property and debt division upon separation. Couples who have cohabited for two years or more have the same legal rights as married couples, including a 50/50 split of assets and liabilities accumulated during the relationship. This excludes pre-existing property, inheritances, and gifts.
In Ontario, common-law couples do not have the same rights as married couples regarding property division. However, 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. These agreements can address critical financial issues like asset and debt division in the event of a future separation.
To protect their interests, common-law partners can seek legal advice and consult a lawyer or notary to understand their rights and obligations during separation. They may also benefit from mediation services to reach an agreement on property division and other issues.
It is important to note that the information provided here is general, and specific legal advice should be sought for individual circumstances. The laws and entitlements may vary based on the region or country of residence.
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Spousal support
Unlike married couples, common-law couples do not need a court to make their separation official. Common-law couples can dissolve their union at any time, with no required legal action. However, if you have lived together for some time, have children together, or have jointly purchased numerous assets, the process of separating can be complicated.
In Canada, spousal support has tax implications. There are various options for spousal support, including periodic payments, lump-sum payments, or options in between. The first question a judge will consider is, "Does the recipient have enough money to live on?". The judge will look at the individual's ability to earn income and the marital and separate assets of the spouse seeking support to determine if they can use these assets as a source of support. For example, if one spouse has a significantly higher-paying job, the other spouse is more likely to receive spousal support.
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Legal rights
The legal rights of common-law partners upon separation differ from those of married couples, and vary depending on the jurisdiction. In Ontario, common-law partners are not entitled to the division of property, and each partner is only entitled to what they brought into the relationship or acquired during it. However, Part 3 of the Family Law Act, which governs support, applies to common-law couples who have cohabited continuously for at least three years, or who have cohabited in a relationship of some permanence and have children together. In such cases, common-law partners may be entitled to spousal support, which is calculated in the same way as for married couples.
In British Columbia, the Family Law Act recognizes 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, including a 50/50 split of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts.
In Québec, common-law partners do not have the right to support payments for themselves unless they agree on it. However, some financial compensation may be possible if one partner was placed at a financial disadvantage for the benefit of the other, or if the couple invested together in a business.
In the UK, common-law partners do not have the same rights as married couples or civil partners when it comes to parental responsibility for their children. The father of the children may not have automatic parental responsibility unless certain criteria are met.
To protect their legal rights, common-law partners can enter into a cohabitation agreement, which sets out the terms in the event of a separation, including the division of property and assets. It is important to seek legal advice to understand your specific rights and obligations during a common-law separation, as the laws may vary depending on your jurisdiction.
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Financial compensation
Common-law couples, or couples who live together without getting married, are not legally required to divide their assets upon separation. Each partner is generally entitled only to what they brought into the relationship or acquired during it. However, there are some exceptions and factors that can lead to financial compensation.
Firstly, in some jurisdictions, such as British Columbia, common-law partners are recognized as having the same legal rights as married couples in matters of property and debt division upon separation. In these cases, each spouse is entitled to 50% of the growth in equity of their combined assets, including RRSPs, pensions, savings, and property. This equal division excludes pre-existing property, inheritances, and gifts, and only applies to couples who have cohabited for at least two years.
Secondly, financial compensation may be possible when one partner was placed at a financial disadvantage for the benefit of the other partner without a valid reason. This could include situations where one partner gave up career opportunities or took on additional responsibilities that impacted their earning potential.
Additionally, if the common-law partners invested together in a business as partners, financial compensation may be warranted. However, specific requirements must be met, and it is advisable to consult a lawyer or notary for guidance.
To protect their financial interests, common-law couples can consider creating a cohabitation agreement before or during cohabitation. This legal document outlines each partner's intentions and rights regarding crucial issues, such as property, assets, and debts, in the event of a future separation. By proactively addressing these financial matters, couples can establish clear guidelines for navigating their independent lives and mitigate potential disputes.
It is important to note that the laws and entitlements related to common-law separations can vary by jurisdiction. Seeking legal advice from a family law professional is recommended to understand your specific rights and obligations during this process.
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Frequently asked questions
A common-law relationship is when two people have lived together in a marriage-like relationship for two or more years.
Common-law couples are not legally required to divide property acquired during their relationship. However, they may choose to enter into a domestic contract, such as a cohabitation agreement, that sets out their respective rights to property. In British Columbia, common-law partners are entitled to an equal share of property acquired during the relationship, similar to married couples.
In British Columbia, spousal support may be awarded to a common-law partner under certain circumstances. In Ontario, spousal support is generally calculated the same way it is for married couples, although married couples would claim support under the Divorce Act.
Child support is determined the same way for married and unmarried parents. Both are calculated using the Child Support Guidelines. If your common-law partner has children from a former relationship who lived with you, you may be considered a parent to that child as well for the purposes of child support.
