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.
Frequently Asked Questions
What is the difference between separated and divorced in Canada?
Separation – your marital status isn’t officially ended; you remain legally married and, thus, cannot wed someone else. A separation signifies the conclusion of your everyday marital relationship but doesn’t proceed as far as a formal divorce. It’s not mandatory to involve a court to establish a separation.
However, seeking guidance from a separation lawyer in Calgary is recommended while drafting the Separation Agreement, as there may be numerous aspects to consider.
Divorce – on the contrary, a divorce requires the involvement of a court. Only the Court of the King’s Bench of Alberta can officially terminate your marital status by approving a divorce. Therefore, hiring an experienced divorce lawyer in Calgary is highly recommended.
Before the court can sanction a divorce, you must be separated for a minimum of 12 months. Due to financial or other logistical reasons, some individuals may choose to prolong their separation.
To learn more about the difference between separation and divorce, see our blog.
In what situation would separation be a more appropriate choice over a divorce?
Couples might hire a separation lawyer in Calgary to assist with separation but not proceed with the legal divorce proceedings. This may occur for many reasons such as if the couple may want to reconcile, their are financial benefits to staying legally married or the parties just simply don’t want to proceed with the official divorce.
A separated spouse can still take advantage of health insurance coverage from the other’s employment, and they can jointly file taxes, leading to potential benefits. It also allows couples to retain marital status to claim Social Security and military benefits, which require at least 10 years of marriage.
What is a Separation Agreement?
A Separation Agreement is a binding legal document encompassing all the issues you and your spouse must address if you continue living separately. A Separation Agreement does not end your marriage but merely sets out your rights and obligations as two parties living apart.
A Separation Agreement should include information such as:
- How you intend to divide your property;
- Support obligations for spouses and children;
- How you intend to educate your children;
- A parenting plan including division of custody; and
- Any other matters you and your spouse deem necessary.
Our separation lawyers in Calgary would recommend including as many foreseeable issues in the Separation Agreement as possible to help avoid any bumps down the road.
What are the financial responsibilities of a separation?
A legal separation places your marriage in a state of suspension. It usually entails both partners relocating to separate residences and beginning to lead independent lives. However, it is possible to be separated and living in one household. Should this be the case, the parties will need to show that they were no longer living as a couple but instead, independently. This can be proven by how they ate meals, divided finances, presented themselves to friends and family and the division of labor in the home.
What are the legal implications of separation in Canada?
In Alberta, no official Court proceedings are needed to make a separation legal or official. This differs from the United States and what you may have seen on television. In Canada, there is no trial separation vs. legal separation. Couples who choose to separate can do so at their will without involving the Court.
However, if you do not file for divorce, you and your spouse will remain legally married. During a separation, there is still a legal obligation to support each other and any children of the marriage. If you wish to outline terms of the separation to include division of property, child support, spousal support, parenting, child custody etc., you can sign a Separation Agreement.
In what situation would divorce be a more appropriate choice than separation?
Divorce may be favoured in certain circumstances.
If a legal separation provides no financial advantage and you’re certain about ending your marriage, opting for a divorce saves time and money by avoiding two legal processes. If you plan on remarrying, a divorce is necessary, as you cannot legally remarry while still married. Divorce also completely severs ties, eliminating mutual decision-making in medical or financial
Both legal separation and divorce have unique attributes, and a divorce lawyer can best guide you on the suitable choice for your situation.
Do I need a lawyer to separate from my spouse?
You could start your separation without a divorce lawyer, but you would likely benefit from legal advice during the process. Once both of you sign the Separation Agreement, it becomes a legally binding contract. Should a dispute about its terms arise, the Court will consider its terms binding. It is also important to note that in Alberta, a Separation Agreement must be signed in the presence of a lawyer who must provided independent legal advice.
As a result, your separation will require you to make decisions that have a lasting effect. It’s best to ask a divorce lawyer for advice to protect your future best interests.
If you are considering separation and wish to have a Separation Agreement drawn up, we recommend consulting a divorce lawyer. A lawyer will ensure your Separation Agreement is legally binding, includes all relevant clauses, and will advocate for fairness on your behalf.
Connect with us to set up an initial consultation today.
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.