There are many different issues that come into play with a common-law separation. The main thing to note is that you do not need to get a “divorce” if you are considered to be in a common-law relationship. Technically, this means you do not need to take legal action against your spouse if you decide to dissolve the relationship.
Although there is no legal action that needs to be taken, if there are joint purchases such as assets and homes or you have had children together, it would be in your best interest to seek legal advice. A family lawyer can help with the separation of these assets and create a separation agreement for you and your situation.
Married couples and common-law couples do not have to follow the same rules and regulations when it comes to separation.
Rights Common-Law Couples Do Not Have
According to the Ontario government, there are certain regulations that are only applicable to common-law couples when it comes to property ownership. For example, common-law couples do not have an equal right to live in the home, unless they are both owners. Also, common-law partners do not have the given right to equalize their net family property, items bought during the relationship. This division isn’t automatic and one party would have to bring a trust claim in order to exert an ownership interest.
Typically, if there is only one owner on the ownership then it will go to that person. Usually, in common-law relationships, you keep everything that is yours and nothing more. As mentioned above, there are equitable remedies that can be brought forward and taken into consideration if the situation deserves it. This can be discussed with your legal counsel to determine if our situation qualifies for such remedy.
Rights Common-Law Couples Do Have
Under the law, common-law couples do have certain rights pertaining to child support, spousal support and pension credits.
When it comes to child support, common-law spouses have the same rights and obligations as married couples do. The courts will base the decision of custody and support on the child’s best interests. Spousal support is the same in common-law as married couples as long as they fall under one of the two distinct categories. The first is, as long as they have lived together for a minimum of three years, or they have a child together and lived together.
Lastly, common-law relationships do have rights to some CPP pension credits depending on whether you have lived together for minimum of one year or you are living together for the purpose of collecting CPP and OAS benefits. Once separated, as long as you have been with your spouse for 12 consecutive months, you and your partner may be able to divide CPP contributions during the time you lived together, once separated.
Legal Separation Agreement
A separation agreement outlines all the rights and obligations two parties have when they have cohabited for longer than a three year period. It will include all of the following (if, applicable):
- ownership in or division of property
- support obligations
- the right to custody of the children
- the right to custody of and access to their children
- CPP and OAS benefits
- and any other matter in the settlement of their affairs
A separation agreement should generally include specific information regarding how any issues facing the separating couple are to be resolved. Separation agreements have serious and lasting consequences. The terms you agree to will shape your future finances, parenting arrangements and general lifestyle plans.
This is why it is important to consult legal counsel for more information. For a free 30-minute consultation contact Epstein & Associates for detailing’s regarding your common-law separation. Here at Epstein Law, we have lawyers specializing in all matters of family law and one that fits your goals and personality.