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WE BROKE UP, I’M MOVING OUT. WHO GETS WHAT?

Oct 30 2014

Between 2006 and 2011, the number of common-law couples in Canada rose 13.9%, accounting for 16.7% of all census families [Source]. As common-law relationships become more popular, it is important to understand the legal ramifications when dealing with a common-law separation.

In a “common-law marriage”, the parties are not actually legally married and, therefore, the couple does not require a divorce if they separate.

So we don’t need a divorce, which means I can keep everything, right? Not exactly.

While the Divorce Act, a federal statute, does not apply to people who are in a common-law marriage, the Family Law Act, a provincial statute, applies to both common-law marriages and legal marriages the same, which carries its own legal implications.

Under the Family Law Act, there are several different definitions of common-law marriage. For the purposes of dividing property, couples must reside together for a period of two years to qualify as a common-law marriage. Once a couple has reached this milestone, the rules for dividing property and debt are the same, whether they are common-law or legally married. These rules state that each party keeps the value of the property they entered the relationship with, and everything created during the marriage is shared 50/50. Inheritances, and certain other property are exempt from division.

If a common-law couple has a child, the definition of their relationship changes slighty. The section of the Family Law Act dealing with child and spousal support defines a common-law marriage as, “Two persons who live together in a marriage-like relationship, and have a child together.” The effect is that once a couple has a child together, no matter how long they have lived together, they are now common-law spouses.

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