“I have lived with my partner for over 6 years and we have a child together, but we are not officially married. Do I need to go through a divorce?”
Pursuant to the Divorce Act a court can grant a divorce on the grounds that there has been a breakdown of their marriage. Obviously if there was no formal marriage, there can be no breakdown of the marriage and therefore; there is no need for a divorce.
However; living in a common law relationship gives rise to various legal issues that would have to be resolved either by way of a separation agreement or a court application.
Pursuant to the Family Law Act parties are deemed spouses if they cohabit continuously for a period not less than 3 years or they are in a relationship of some permanence if they are the natural or adoptive parents of a child. Furthermore, once a spousal relationship has been established there is an obligation to provide support for the other spouse in accordance with their needs, to the extent that he or she is capable of doing so.
Spousal support will have to be calculated taking into account entitlement, duration of the relationship, income of both parties and the number of children.
The spousal support advisory guidelines (SSAG) have come into effect which will give a range of spousal support figures to act as a basis for negotiating the quantum of support. Unlike the federal child support guidelines which are law, the SSAG’s are advisory only.
There are further issues dealing with the custody, access and support of the children, which will have to be determined.
The only major difference between a separation after a marriage and the separation after a common law relationship deals with property.
There is no equalization of family property in a common law relationship. Only property that is jointly owned can be divided. Cohabitation in a common law relationship does not allow a person a share of his or her partner’s property.
There is a concept of unjust enrichment and trust law that can be raised in order to try and share in the asset owned by the other common law spouse.
All of the above issues can and should be put into a formal separation agreement that can be enforceable in a court of law or obtain a court order dealing with all of the issues.
Stanley J Potteri s a Toronto-based family lawyer offering legal services for divorce and separation, child custody and co-parenting applications, child support, spousal support and other family law matters.
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