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.
The Family Property Act
As of January 1, 2020, Alberta’s new Family Property Act is in force, the effect of which is to bring unmarried couples who have separated on or before January 1, 2020 under the same property-sharing scheme as married couples.
Division of property
In Alberta, the law does not refer to couples as being “common law,” but rather as Adult Interdependent Partners. An unmarried couple would qualify as being an Adult Interdependent Partnership under the Adult Interdependent Relationships Act if they lived together in a relationship of interdependence:
- For a continuous period of at least 3 years; or
- In a relationship of some permanence and have a child together by birth or adoption; or
- The two people have entered into an agreement to be Adult Interdependent Partners in accordance with the regulations.
Under the new Family Property Act, upon the breakdown of a relationship, the property of Adult Interdependent Partners is treated the same as property owned by married couples. This means a 50/50 division of property acquired during the relationship (with certain exceptions).
It is important to know that a claim for their remedies must be commenced within two years of the date of separation or the claim will be statute barred as a result of the Limitations Act.
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.