Everything you need to know about common law separation

Neil Sedaka wasn’t lying when he sang “Breakin’ Up Is Hard To Do!” A common law separation, or any relationship separation, is never easy and can be an emotional time for the whole family.

In this article, we’ll outline what you need to know about common law separation. Please remember that every situation is different, so please consult a divorce lawyer about your unique circumstances.

Do you have to get a divorce from a common law marriage?

When you’re in a common law relationship, there is no legal requirement to divorce or to create a common law separation agreement. You can end your relationship at any time without any paperwork required by the courts. That said, if you have shared property or debts, children, or any other shared physical or financial assets, legal representation is often recommended to ensure everyone’s rights and privileges are honoured and divided appropriately.  

How long does it take to be considered Common Law?

To be considered in a legal, common law relationship in Canada, you and your partner must have cohabited in a marriage-like situation for a certain number of years as determined by your province of residence. This varies between 1-3 years and some provinces have additional stipulations to further define this relationship based on if you share children with your partner. In British Columbia, you need to cohabitate for 2 years.

Separating Assets: Do common law separations mean an equal division of all assets?

This part often causes the most headaches in a separation or divorce. At the most basic level, any debt or assets you bring into the relationship are yours, and any that occur or accrue during the relationship is subject to being divided between the 2 parties.   

Unless other external circumstances exist, you can generally expect the following:

  1. Individual Debts: Each person is responsible for paying debts that are solely in their name or debts they had before the relationship.
  2. Shared Debt: Any debts that are in both names are to be split between you but the percentage is negotiable. Often this is split 50/50 or one partner will “buy” out their share of the debt.
  3. Individual Assets: Any assets owned by you or our partner before your relationship are generally considered to be yours, unless interest or debt was accrued during the course of your relationship.
  4. Shared Assets: Shared assets will either be divided equally (if that’s possible), or the asset may be sold and the separation agreement will outline what percentage of the sale each person receives.

When evaluating your assets be sure to consider, your family home, RRSPs, investments (financial or real estate), bank accounts, insurance policies, pensions, and any businesses you or your partner own.

When evaluating your debts take into account any mortgages, loans from family members, lines of credit or overdrafts, credit cards, income tax, or repair bills.

Do you get spousal support in a common law separation?

Spousal support laws are similar for common law couples as for married couples. If it’s proven that a common law relationship legally exists, and one person is financially dependent on the other, the higher earner may be required to pay spousal support. If both parties earn similar amounts or there is no significant dependency on one of their incomes, the courts may not order any spousal support.

Keep in mind that there may be a statute of limitations on claiming spousal support in your province. In some provinces, you have 2 years to make a claim, and others it’s only a few months from the date of separation. In British Columbia, you have 2 years from the date of separation to file for support.

What if there are children are involved?

If the couple conceived or adopted children together, the same child custody rules apply whether they’re married or common law. Common law spouses have the same rights and obligations to their shared children as married spouses.

Regardless of your marital status, or if the parents can’t agree on an arrangement the courts will always act in the best interest of the child when it comes to determining their future.

How do I file for common law separation?

If you are serious about a separation from your common law partner, here’s what you need to do.

First, if you or anyone in your household is in imminent danger, leave immediately and stay at a hotel or other safe place and call your local non-emergency police number. Return to your home only when it’s safe to do so and collect personal items, legal documents, and medications.

Next, retain a family law or divorce lawyer. A lawyer who specializes in these types of cases can help you draft up legally binding agreements for the distribution of your assets, debts, and spousal support. A common law separation can often be an emotional time, so a lawyer is there to be your advocate and ensure your rights are protected and you get what you are entitled to.

Why you need a lawyer for your common law separation agreement

Even when your separation is amicable, it’s always best to seek legal representation when creating a formal separation agreement with your common law partner. A family lawyer who specializes in divorce or separation can make sure you fully understand your rights and provide you with a checklist of things to include and consider in your agreement.

They can also help ensure that the language in your agreement is legally binding, which you’ll want should anything go sideways during the negotiations or in the future.

These are just guidelines on what you can expect when separating from your common law partner. With any common law separation agreement, all of these issues, including any circumstances unique to your relationship, will be outlined and divided between the two parties.

If you are considering or want to create a common law separation agreement, contact a family or divorce lawyer from Dreyer and Associates Lawyers LLP and they can advise and act as your representative throughout the whole process.





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