Entitlements in a Common Law Separation: A Full Guide

270

Going through a separation can be a difficult and stressful process, especially when it comes to dividing assets and determining financial entitlements. In a common law relationship, the process of separation and property division can be complex. In this article, we will guide you through your entitlements in a common law separation, providing actionable steps to help you navigate the process.

What is a Common Law Relationship?

A common-law relationship is defined as a relationship between two people who have lived together for a certain period of time, typically two years, without being legally married. Unlike marriage, there are no automatic rights or entitlements that come with a common law relationship. However, if a common law relationship ends, either party may be entitled to certain benefits.

Division of Property

One of the most significant issues that arise when a common law couple separates is the division of property. In a common law relationship, each person owns the property they brought into the relationship, but any property acquired during the relationship may be subject to division. Here are some key points to keep in mind:

1. Unjust Enrichment: One way property may be divided is by using the concept of “unjust enrichment.” This means that one party may be entitled to a share of the other party’s property if they were financially disadvantaged by the relationship.
2. Legal Ownership: The legal ownership of property does not necessarily determine who is entitled to it in a separation. For example, even if one person’s name is on the deed to a home, the other person may still be entitled to a share of the value of the home if they contributed to its purchase or maintenance.
3. Timing Matters: The timing of when property was acquired is also important. Generally, only property acquired during the relationship will be subject to division, but there are exceptions. For example, if one party contributes significantly to the other party’s pre-existing property, they may be entitled to a share of it.

Spousal Support

Spousal support is another important consideration in a common law separation. If one partner was financially dependent on the other during the relationship and will suffer significant financial hardship as a result of the separation, they may be entitled to spousal support. Here are some key points to keep in mind:

1. Factors Considered: When determining entitlement to spousal support, courts will consider factors such as the length of the relationship, the roles each partner played in the relationship, and the earning capacity of each partner.
2. Duration: The duration of spousal support payments will depend on a variety of factors, including the length of the relationship and the earning capacity of both partners. In some cases, spousal support may be awarded for a fixed period of time, while in others it may be open-ended.
3. Variation: Spousal support can be varied over time if there is a change in circumstances, such as a significant increase or decrease in income.

Child Custody and Child Support

When a common law couple separates and they have children together, issues related to child custody and child support must also be considered. Here are some key points to keep in mind:

1. Best Interests of the Child: In any child-related decision, the court will prioritize the best interests of the child. This means that the court will consider factors such as the child’s needs, their relationship with each parent, and their overall wellbeing.
2. Decision-making Responsibility: Under Canadian law, both parents have the right to make decisions regarding their child’s upbringing. However, in cases where there is a dispute, the court may need to intervene.
3. Child Support Guidelines: Child support payments are based on federal guidelines that take into account the paying parent’s income and the number of children being supported. Typically, the parent with whom the child primarily resides will receive child support payments.

Steps to Take During a Common Law Separation

Here are some actionable steps to take if you’re going through a common law separation:

1. Seek Legal Advice: The laws regarding common law separations vary by province, so it’s important to consult with a lawyer who specializes in family law to understand your rights and entitlements.
2. Document Everything: Keep detailed records of all property acquired during the relationship, including financial contributions made by each partner.
3. Make a Plan: Work with your partner to create a plan for how property will be divided and how spousal and child support will be determined. If you can come to an agreement outside of court, it may save time and money in the long run.

Conclusion

Dividing assets and determining financial entitlements in a common law separation can be overwhelming, but understanding your rights and taking the necessary steps to protect yourself can help ensure a fair and equitable outcome. By following the guidance provided in this article and seeking professional support, you can navigate the complex process of common law separation with confidence and clarity.