Common Law Separation
The definition of a common law relationship, also known as cohabitation, is defined as two people residing together in a committed “marriage-like” relationship. Over the past number of years we have seen a rise of common law relationships in Canada and it is said to be the fastest trending family structure. People are deciding to move in and live with each other as unmarried partners for extended periods of time with or without any intention to ever get legally married. For a relationship to be considered a common law relationship, a couple must reside together for a specific period of time as indicated by the legislation of the province they reside in. More and more people are "living together" as unmarried partners.
Although this type of relationship is now very common, the rights of people living together outside of a marriage are still quite misunderstood. Many people are falsely led to believe that the common law couple is entitled to the same rights as a married couple but this is not often true.
Since marriage laws are provincially regulated, the laws vary considerably depending on the Canadian province that the couple resides in. At one end of the spectrum, British Columbia considers common law partners the same as married couples in most respects. On the other hand, the province of Quebec does not recognize common law relationships at all.
One area where laws differ in various provinces is in how the courts determine what cohabitation is and when a couple is considered to be in a common law relationship. We discuss these factors next.
Qualifications for Common Law Relationship
For one to have been considered to be in a common law relationship the judge would have to look at the lifestyle of the parties in the relationship. There are 7 main criteria that are considered.
• Living Accommodation/Shelter: Does the unmarried couple reside together?
• Sexual and Personal Behaviour: Do the unmarried parties maintain an intimate interdependent relationship and are they so perceived by others.
• Services: Are traditional family functions shared by the unmarried couple?
• Social Life: Are the parties recognized by the outside world as a couple?
• Societal: How are the common law partners treated by their community?
• Economic Support: Did the unmarried couples share financial obligations, support one another financially, etc.?
• Children: Do the unmarried couple have any children together, see children as part of their home or interact parentally with each others’ children?
Some of the basic misconceptions of common law separations are usually to do with property and child custody. In general, there is no such thing as “matrimonial assets” in a common law relationship so it is always advisable to establish a cohabitation agreement when you are living “common law” to clearly establish how assets will be divided in the event of a break up.
Unlike a married couple where everything would be split equally, generally for common law, each person gets to keep what belongs to them and each person is responsible for the payment of their own debts.
In the instance that an asset is in the names of both parties, then its value is to be equally divided amongst the couple. The couple can come to an agreement on the method by which the asset will be split. The asset can be handled by one partner “buying” the other out, or the asset can be sold and the proceeds equally shared among the two. In the event that these laws result in an unfair division, then a partner will need to make a claim to the courts citing “unjust enrichment”. This happens when one person feels that they have made significant contributions to the “partnership” which are not being compensated for at the time of the breakup. For example, if one party paid the rent for an extended period of time or perhaps worked for the other party without pay, they may be entitled to restitution to compensate for expenses or services that unfairly benefited the other party.
Spousal support is not often sought or granted in common law marriages unless there are children involved. Throughout Canada, the laws that pertain to matters such as child custody, child support and child access and visitation rights are the same for common law couples and couples who are legally married.
Find Legal Advice
Considering the vagueness of the laws surrounding common law separation and how it varies by province, the best way to ensure you are getting the best, most accurate advice is to obtain legal representation. A specialized lawyer in family law, and more precisely common law spouses, will be able to adequately assist you and correctly answer your questions. Of course, at Zeidman Law Office, we are more than happy to meet with you to explain how you can ensure that your rights are properly protected.