How common-law separation and divorce differ
When you reside with another person in a spousal like relationship, you may end up creating legal rights and obligations, which must be resolved upon the breakdown of the relationship. These legal issues are often similar to those experienced by married couples, but with some important differences.
No universal legislation
One of these important differences is that there is no “one size fits all” definition of what it means to be involved in a common law relationship. 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 contrast, 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 merely have lived together in a relationship “of some permanence”, before a separated spouse could potentially claim spousal support (or more technically, adult interdependent partner support) from the other spouse.
Division of property
Another important difference is that, in Alberta, there is no legislation which dictates how property is to be divided when the common law relationship ends. In the case of married couples, property division upon marriage breakdown is governed by the Matrimonial Property Act (the MPA). Under the MPA, property is divided (generally equally) 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 analysis of the Court focuses on matters such as the length of the relationship, 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. Child support is governed by the Alberta Child Support Guidelines, which are virtually identical to the Federal Child Support Guidelines. In relation to spousal support, if a couple meets the definition of an “adult interdependent relationship”, the Court applies the same basic objectives and guidelines to determining spousal support for a common law couple as it would for a married couple.
How a common-law separation lawyer can help
At Jones Divorce and Family Law we understand the unique challenges associated with a common law separation. We know the nuances of the law and the distinctive factors to focus on in order to help you reach a favourable resolution.