Common Law Separation

Common Law Separation Lawyers in Calgary, AB

Common-Law Separation Lawyers in Calgary Alberta portrayed by pens and markers surrounding a notepad that says "common law" near a gavel.

Adult Interdependent Partners” (AIPs) is the term used for most common-law partners or partners who live together without marrying in Alberta. Common-law relationships (both heterosexual and same-sex) are often referred to as Adult Interdependent Relationships.

When the Family Property Act replaced the Matrimonial Property Act in January 2020, it granted important new rights for AIPs, most notably the legal right to support and equitable property division. This brings the rights of AIPs when they separate into line with married couples who separate.

However, not all common-law partners qualify as Adult Interdependent Partners. What rights do they have?

An experienced Calgary common-law separation lawyer can help you understand how the property division laws in Alberta apply to your situation so that you can claim what is rightfully yours.

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What is “common law” in Alberta?

Separations between people who don’t marry are addressed under provincial legislation because the federal Divorce Act only applies to married couples.

Common-law separation results in many of the same legal challenges as divorcing couple, such as the allocation of support and property division. In Alberta, the rights and responsibilities of Adult Interdependent Partners are defined in the Family Property Act. This applies to any couples who have:

  • Lived together for three years or more in a “relationship of interdependence”
  • Created a contract together
  • Raised a child together (by birth or adopted) in a “relationship of interdependence” or of some permanence

What are the main differences between “common-law” and AIP relationships?

For couples who live together but do not qualify as adult interdependent partners, the common-law principles of Constructive Trust and Unjust Enrichment apply when settling disputes after a relationship breakdown.

When using these principles to claim a share of an asset that was acquired after the beginning of the relationship, partners must prove that they contributed materially to that asset and no reason prevents a portion of this property from being awarded to them. Each matter will be considered on a case-by-case basis by the Alberta courts.

2020 Family Property Act update

Updates made to the Family Property Act applied to anyone in an adult interdependent relationship who separated in Alberta after January 1, 2020. These updates granted equitable property division rights for AIPs—as with married couples.

In other words, any adult interdependent partner who separated from their partner after that date was entitled to an equitable (or fair) division of the property from the relationship. Like with divorces, equitable does not always mean “equal” but an equal division is often the fairest solution.

A maximum period of two years from the date of common-law separation applies to anyone who wants to claim. Any partners who separated before January 1, 2020, or who do not qualify as AIPs should refer to the common-law principles already outlined above and also in the following section.

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Considerations for common law separation and property division in Alberta

AIPs and couples with legal married status have an automatic entitlement to a share in the “marital” assets upon divorce or separation.

Couples who do not qualify as AIPs do not have an automatic entitlement to a share of the relationship’s assets if it ends.  That said, non-AIP couples may still choose to undergo a formal property division process with the assistance of a common-law separation lawyer. In some cases, a formal claim must be made to the courts, which is easier with the help of a suitably qualified family lawyer.

Cohabitation agreements

A legally enforceable cohabitation agreement will override the provisions of the Family Property Act. In other words, property is divided according to the cohabitation agreement provisions if the relationship ends—regardless of the date it was drafted and signed and even after the updates to the Family Property Act.

What else should you consider during property division?

When a common-law relationship ends and does not meet the requirements for AIP status under the Family Property Act in Alberta, bear in mind these additional factors…

Joint family ventures

Parties who separated before January 1, 2020, could be assessed by a joint family venture test. Under this rule, individuals who could prove that they lived “marriage-like” throughout their relationship could be awarded a portion of the financial benefit accrued from the growth of assets in the relationship.

Minimum claim periods

Under common law in Alberta, no minimum relationship period applies before either partner has a claim on property—unlike with AIPs in the Family Property Act. Also, no minimum period applies to the end of the relationship before a claim can be made.

Spousal support for common law partners in Alberta

Spousal support is often awarded in divorces to ease the transition from marriage to independent life. This support is designed to prevent financial hardship for either party.

Adult Interdependent partners in Alberta may be eligible for spousal support upon separation under the terms of the Family Law Act. To be eligible, one partner must be able to demonstrate financial hardship due to the relationship or its breakdown.

What factors are considered in spousal support cases?

As with divorces, judges in Alberta consider a range of factors before awarding spousal support after a relationship ends. These include:

  • The length of the relationship
  • The roles and responsibilities of each partner during the relationship
  • The financial resources and earning capacities of each partner
  • The need for financial support, considering each partner’s financial situation
  • The age and health of each partner
  • The standard of living established during the relationship
  • Any agreements or arrangements made between the partners regarding financial support

How to calculate spousal support

Because partners are required to demonstrate a need for support and no fixed formula is available to calculate it (or its duration), many common-law partners seek legal assistance with this matter after a relationship breakdown.

The Spousal Support Advisory Guidelines may help provide an idea of the amount of support taking into account the income of both partners, the length of the relationship, and whether children are involved. However, the guidelines are far from foolproof. Judges can exert a great deal of discretion both with the amount and duration of support.

Because of the complexities and the recent changes to the family laws in Alberta, many common-law partners seek help from experienced legal professionals to protect their rights and outline their legal options after a relationship ends.

If you live in the Calgary area and need assistance with your case, the experienced lawyers at Jennings Family Law can help you. Call us directly at  403-316-0138 or book a case evaluation to discuss your situation.

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