Common Law Divorce in Canada
While commonly called “divorce” by couples terminating a common law marriage, the Canadian court defines the termination as a separation. Separation differs slightly from divorce, including potential legal processes and rights assigned to issues of child custody, spousal support and property division.
Other People Are Reading
-
Definition
-
Canadian Family Law, which was passed in 1990, defines a common law relationship as one between two individuals who have lived together for at least three years in a marriage-like relationship. Common law relationships include both heterosexual and homosexual relationships. The Canadian courts determine a marriage-like relationship by looking at several factors. If the couple lives together, shares financial obligations, shares household management or labor, considers themselves or are perceived as spouses or as a married couple, then usually the couple is considered to be a common law couple.
Separation
-
Canadian law requires that couples who are legally married must initiate legal proceedings to achieve a divorce. In contrast, a legal separation sanctioned by a Canadian court is not required for a separation of common-law married couples. If couples do not have issues such as property division, child custody or child support to address in a legal proceeding, common-law married couples can end their relationship by simply separating from each other.
-
Spousal Support
-
In certain cases, an individual who was in a common law marriage is entitled to spousal support. The factors determining eligibility for spousal support vary on an individual basis, and largely relate to the individual’s lifestyle while in the common law marriage. Individuals seeking spousal support in a common law separation should seek legal representation.
Child Custody
-
Like spousal support, child custody issues must be addressed in a Canadian court. Custody issues will be explored on an individual basis, though generally one parent is not favored over another. The court will address issues of jurisdiction and take into consideration the health and welfare of the child or children in question. Individuals seeking child custody decisions in a common law separation should seek legal representation.
Property Division
-
When a married couple gets divorced, Canadian law stipulates that property be divided equally. This does not apply to common law marriages, however. To seek judgment in property division, especially if an individual is not listed on a mortgage or a registered owner of a vehicle, an individual must compile evidence to prove he made a significant monetary contribution to the property during the common law marriage. If no monetary contribution was made, an individual may also be able to claim making a significant contribution to care and upkeep of the property that increased its value.
Cohabitation Agreement
-
Because there is less protection under the law for common law couples, couples should consider writing and signing a cohabitation agreement. If an agreement is signed, which stipulates property division and child custody, among other issues, the Canadian courts will apply the same family law rules to the common law separation as they would a divorce.
-
References
- Photo Credit Pixland/Pixland/Getty Images
