A common-law marriage in Canada is defined as two people who live together in a “marriage-like” relationship but who are not legally married.  The law recognizes a common-law relationship between same-sex couples or opposite-sex couples when the couple has been together for:

• One year under most federal laws.
• Two or three years under most provincial laws.

You do not need to obtain a divorce in order to legally end your common-law relationship, but you do need to understand your legal rights and obligations.  It is important to seek legal advice about how your rights will be affected by the dissolution of your common-law marriage.

What is the test for proving a marriage-like relationship?

How exactly do you know if you’ve been involved in a marriage-like relationship?  If there is a disagreement between two parties as to whether they were in a common-law relationship, the court will look at the following evidence:

• The length of the relationship.
• How the parties referred to each other (husband and wife, spouses, partners, etc.).
• Did the parties share legal title or rights to their home?
• Did they share in household duties?
• Did they have a sexual relationship?
• Did they have children?
• Did they share property?
• Did they share finances or bank accounts?
• Did they go on vacations together?
• The extent to which they were financially interdependent or the extent to which one party was financially dependent on the other.

Courts recognize that relationships come in various forms.  You don’t need to meet all of the above criteria in order for the court to find a marriage-like relationship. 

If you are unsure about whether your relationship will qualify as a common-law marriage, consult a local experienced family law lawyer today.  

Ending your common-law relationship.

Because a common-law couple was never legally married, they do not need to get a divorce in order to legally end the relationship.  A common-law relationship is over when one party moves out, or the parties mutually decide that the relationship is over. 

Just because you don’t need a divorce, doesn’t mean you won’t need a lawyer.  There are lots of legal issues stemming from the dissolution of your relationship that still need to be resolved, including:

• Who will have custody and access rights to the children?
• What will the parenting schedule look like?
• Will one spouse pay child support to the other?  In what amount?
• Will one spouse pay spousal support to the other?  For what period of time?
• How will any jointly owned property be divided?
• Does one spouse have a legal claim to property owned by the other spouse?

In some cases, the laws surrounding the end of a common-law relationship can be more complicated than those surrounding the end of a marriage.  You need an experienced family law lawyer to look out for your rights and interests.

Common law in Alberta.

In Alberta, common-law spouses can make some of the same legal claims as married couples, such as claims for child custody, child support or spousal support. 

In Alberta, there is no presumption of equal division of property at the end of the relationship.  In general, each common-law partner will keep assets in his or her own name and jointly owned assets will be divided equally.  If this division of assets would be unfair in your situation, you may have a claim in equity.  These claims can be difficult to prove in court, so consult a family law lawyer as soon as possible. 

Common law in BC.

Provincial legislation in BC puts common-law spouses in very much the same position as married spouses for most purposes.  Common-law spouses can make legal claims for custody, child support, spousal support and equal property division. 

Common law in Ontario.

Ontario’s provincial legislation is similar to Alberta’s in that it does not start with a presumption of the equal division of property for common-law spouses.  Common-law couples in Ontario may have to resort to claims for unjust enrichment and constructive trusts in order to achieve a fair division of property. 

Leaving a common-law partner can be just as difficult as ending a marriage.

Emotionally and legally, ending a common-law relationship can be every bit as complicated as getting a divorce.  Don’t think that leaving your common-law partner will be any easier than leaving a husband or wife.  Allow an experienced family law lawyer to advise you and guide you through this difficult time.  Consult a lawyer today.