Living with another person while in a relationship may give rise to legal rights and obligations, which must be dealt with upon the breakdown of the relationship. These legal issues are often similar to those experienced by married couples, but with important differences.
For example, under some federal legislation, legal rights and obligations may arise between two people who have lived together in a spousal type relationship for more than one year. In Alberta, the Family Law Act requires unmarried couples to have lived together in a relationship of interdependency for a period of three years before a spousal support obligation may arise. If the couple have children together, however, the couple must have lived together in a relationship “of some permanence”, before a separated spouse could claim spousal support from the other spouse.
HOW IS PROPERTY DIVIDED IN COMMON LAW RELATIONSHIPS?
Another important difference is that there is no legislation, which governs how property is to be divided when the common law relationship ends. For married couples, property division upon marriage breakdown is governed by the Matrimonial Property Act (the MPA). Under the MPA, property is divided without regard to who actually owns the property or whose money was used to purchase the property. The MPA does not apply to unmarried couples. Instead, the rules regarding property division are outlined in case law relating to equitable principles of unjust enrichment and constructive trust. These rules only require property to be divided if certain criteria are met. Moreover, there is no presumption of equal division of property.
The Court focuses on factors such as:
i. the length of the relationship;
ii. the types of contributions of each party both financial and otherwise, to the acquisition or maintenance of the property, and the determination of the extent to which the couple was involved in a joint family venture. Where it is found that it would be unjust for one person to retain property without sharing its value with the other, the Court will direct an accounting or division of the asset between the parties. This division of property may be, for example, 80/20 or 50/50 depending on the specific circumstances of the parties.
With respect to guardianship, parenting, child support and spousal support, there are many similarities in the rules relating to married couples and unmarried couples. In relation to children, as always, the guiding principle is the “best interests of the child”. Courts resolve issues of decision making and parenting schedules using the same legal principles that apply to married couples.
If you are thinking of separating from your common law spouse or have already separated, sit down with one of our divorce lawyers today, and let us outline your legal rights and explain our process for enforcing them.
CONTACT OUR FAMILY LAW LAWYERS FOR COMMON LAW SEPARATION HELP
Due to the emotionally charged nature of a common law cases, it is important to have an objective advocate assist you. The divorce lawyers at Spectrum Family Law can provide you with practical solutions so that you can get through this difficult time in a cost-effective manner. Although it is always preferable to negotiate a resolution of the issues arising out of a separation, our lawyers are prepared to go to court when necessary to ensure your rights are respected.