Information on Common Law Separation for a Recent Break-up

| Updated on October 5, 2023

A common-law relationship is classified as a romantic relationship between two partners who have lived together but haven’t got married. In such a relationship, the separation occurs when one partner chooses to live separately from the other, and both of them aren’t “partners” to one another anymore.

There is a lot of information on common-law separation that involves the understanding of the relationship, the division of property, child custody, and more. To keep yourself out of legal hassles and issues, be sure to be clear on these.

Common-Law Separation

For common-law partners to separate, they do not have to follow any legal procedure. They do not need to file for divorce or wait for an Order of the court before deciding to dissolve their union. It requires merely no legal action to separate.

But the situation is different if you two are in the course of living together, have had children, and bought assets together. That complicates the separation process and takes its degrees above a regular dissolution. You may have to seek advice from your family lawyer and sign an agreement of separation.

It is important to note that common-law partners do not have the same rulings and rights as married partners. The information below applies to both same-sex and opposite-sex couples.

What Common-Law Separation Do?

Property Division:

Part 1 of the FLA or the Family Law Act ascertains equal financial gains to both the partners married to one another, in case of property and asset division. However, the situation is different for unmarried couples. They are not legally entitled to a division of property, let alone equal gains.

Since common-law partners are not subject to the property-division regime of the FLA, each partner can take only what they acquired or bought during the relationship. Any property or asset for which the partner spent his own money, belongs to that partner and is the one he or she can leave with.

The partner is not entitled to get what the other bought or acquired. However, there is ruling on the determination of who owns what.

Spousal Support:

Support is governed and regulated by Part 3 of the FLA. If common-law partners have cohabited for 3 years or more, continuously, they can take help through this. It also applies to people who have been in a permanent relationship of sorts. For that, both types have to have adoptive or natural children together.

You are subject to spousal support if you satisfy two of the three information provided above. You will be either entitled to spousal support or may have to pay for the same to your partner. Except that married couples claim under the Divorce Act, the calculation of spousal support will be the same for both married and common-law couples.

The tricky part is the calculation of the continuous three years if the partners have also maintained separate residences or for work has spent a lot of time away from each other. But if they have acted like spouses meanwhile, maintained integration and commitment despite the separation in those three years, their cohabitation can be accepted.

Child Support and Custody:

A parent has a legal duty to provide for and support his dependent child in the best way as he can. Child Support for common-law partners is calculated in the same way as married partners. Whether the claim is made under the DA or the FLA, the calculation is done based on CS Guidelines.

Remember that, for child support, you can be considered the parent to a child of your common-law partner’s previous relationship as acting in loco parentis.

For Child Custody, the common-law partners have to claim under the Children’s Law Reform Act or the CLRA, whereas married couples have the same claim using the Divorce Act. The CLRA act is for those who have chosen to separate after a common-law relationship has ended.

This applies not only to cohabiting couples but also to those who haven’t cohabited but have children together. The married couples who do not want a divorce but one of them wants custody of the child can also apply under the CLRA.

To know more about Common-Law Separation, you can take legal advice from your family lawyers.

Aaron Harris


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