Cameron Miranda
The end of a common-law relationship can be a complex process involving serious legal and financial matters. Common-law relationships are not legally recognised as marriages, but may be considered a domestic partnership, conjugal union, or civil union. While the specific laws vary across different provinces, states and countries, common-law spouses generally have fewer legal rights than married spouses upon break-up. For instance, in Ontario, common-law spouses do not have an automatic right to equalise their net family property acquired during the relationship or live in the family home, unless they are joint owners. In British Columbia, however, common-law partners are entitled to an equal share of property acquired during the relationship, similar to married couples. To protect their rights, common-law couples can sign a cohabitation agreement or separation agreement that outlines how property will be divided, who the children will live with, and how much child and spousal support will be paid.
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Property division
Unlike married couples, common-law couples are not entitled to the equalization of their family property. In other words, common-law spouses do not have an automatic right to equalize their net family property acquired during their relationship. This means that each person takes whatever property they own, and any property that is jointly owned will be shared.
Furniture, household items, and other property belong to the person who bought them. Common-law couples do not have the right to split an increase in value of the property they brought with them to the relationship. However, if you contributed to property your spouse owns, you may have a right to part of it. Unless your spouse agrees to pay you back, you may have to go to court to get back your contribution.
If you did not own property with your common-law partner, you may still have a claim against the estate if you can show that you made valuable contributions to the property during your relationship. For example, if you took on household or child-rearing tasks to enable your partner to work or build a business, and the money from that business is not shared, a court could award you a share of the increase in value of the business over the course of the relationship.
To clarify their rights to shared property, common-law couples can sign a cohabitation agreement. This can be done before or after separation, and it is beneficial to get independent legal advice before signing. If you have children from another relationship, they may also have a claim against the estate.
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Child support
When a common-law relationship ends, the partners involved may have similar rights and obligations to those in a marriage. This includes the obligation to financially support children of the relationship.
In Canada, common-law relationships are legally recognised, but the degree of recognition varies across provinces, impacting the legal rights of common-law partners. Common-law couples are subject to the same laws and rules around child support as married couples.
If the parents cannot agree on child support, a court can order support payments based on federal and provincial guidelines, with the overriding principle being the best interests of the child. The court has discretion to deviate from the Table amount and can award an amount it considers appropriate, taking into account both parents' incomes and the child's ability to support themselves.
The obligation to pay child support typically ends once the child reaches the age of majority and becomes self-sufficient, unless the child is in full-time school, in which case support may continue until the completion of a post-secondary degree. Under the Divorce Act, the obligation to support a child with an illness or disability continues even after the age of majority if they are unable to withdraw as a child of the marriage.
In cases where a common-law partner has children from a previous relationship, their new common-law spouse may be considered a parent for child support purposes if they have taken on a parenting role. This is known as standing "in locus parentis". The court considers factors such as the length of time they have lived with the child, their involvement in discipline, attendance at important meetings, and financial support.
If the natural parents are paying the full amount of child support, the step-parent may not be required to contribute. However, if the natural parents are not providing adequately, a step-parent may be obligated to pay child support, with the amount determined by a judge based on relevant guidelines and the specific circumstances.
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Spousal support
In the event of a common-law relationship ending, spousal support may be sought by either party. Common-law spouses have the same rights as married spouses to child custody, access, and support. Therefore, if a common-law relationship ends and children are involved, arrangements for custody, access, and child support must be made, similar to those for a married couple.
In some provinces and territories, a common-law couple must live together for two or three years before either partner is eligible for spousal support. For instance, in Ontario, a couple is considered common-law if they have lived together for at least three years or have a child together and have lived together in a relationship of permanence.
To determine the amount and duration of spousal support, judges may refer to the Spousal Support Advisory Guidelines (SSAGs). These guidelines are not mandatory but provide a framework for calculating spousal support amounts. Alternatively, a spousal support calculator can be used to get an approximate idea, although it only considers employment income. Consulting a lawyer is recommended to understand one's spousal support rights and obligations fully and to ensure all relevant factors are considered.
It is important to note that spousal support agreements can be reviewed and modified if significant changes occur. If an agreement cannot be reached, a judge may decide on the amount and duration of spousal support.
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Cohabitation agreements
When a common-law relationship ends, the couple generally has fewer legal rights than married spouses, especially regarding property and finances. Common-law couples do not have the automatic right to share property acquired during their relationship.
To protect their rights, common-law couples can enter into a cohabitation agreement, a legal document similar to a marriage contract. This agreement outlines the terms in the event of a separation, such as property rights, spousal support, and child custody. Here are some key points about cohabitation agreements:
Purpose and Benefits
Content and Terms
Creation and Modification
Limitations and Considerations
While cohabitation agreements provide a level of protection, they may not cover all aspects of a separation. For example, they cannot dictate parenting time or custody arrangements, and certain rights, such as spousal support or property division, may still apply even without a formal agreement. Additionally, the laws governing common-law partnerships vary across jurisdictions, so it's essential to seek legal advice specific to your region.
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Legal rights
The legal rights of common-law spouses or partners upon the breakdown of their relationship vary depending on the jurisdiction. In some places, common-law spouses have fewer legal rights than married spouses. For example, in Ontario, Canada, common-law spouses do not have an equal right to live in the family home or an automatic right to equalise their net family property acquired during the relationship. However, in British Columbia, Canada, common-law partners are entitled to an equal share of property acquired during the relationship, similar to married couples. This applies to assets accumulated after cohabiting for two years or more.
In Nova Scotia, Canada, common-law partners can register their relationship with the government, which grants them similar rights to married people, including pension benefits and the share of assets upon separation or the death of a partner.
In some cases, common-law spouses may be considered "unmarried spouses" and treated the same as married spouses for certain purposes, such as taxes and financial claims. For example, in the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
To protect their rights, common-law couples can enter into a cohabitation agreement or a separation agreement that outlines the terms of their separation, including property division, spousal support, and child custody. It is important to consult a lawyer to understand the specific legal rights and obligations that apply to your situation.
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Frequently asked questions
A common-law relationship is one where two people are living together in a conjugal (married-like) relationship without being legally married. The two people can be of the same or opposite sex.
Common-law spouses can deal with issues arising from their separation by entering into a formal separation agreement. This agreement can set out how property will be divided, who the children will live with, and how much child support and spousal support will be paid. Unlike a legal marriage, common-law spouses do not need to get a divorce to end their relationship.
A cohabitation agreement is a contract signed by couples in a common-law relationship before they start living together. It protects their rights if they split up in the future, including rights related to property.
A cohabitation agreement is signed before the couple starts living together, while a separation agreement is signed after the couple decides to separate. Both agreements set out the respective rights of the common-law spouses to property.
