Common-Law Separation

Navigating a common law separation or an adult interdependent relationship separation in Alberta can be complex and emotionally challenging. Recent amendments to the Family Property Act have made legal guidance crucial in understanding your rights and obligations. Our comprehensive guide covers key aspects like property division, child custody, and support. Discover valuable insights into the legal landscape, and optimize your decisions with our detailed guide.

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Client Testimonials

"I can not thank you enough for making this process easier then anticipated. You are genuine and lovely and I appreciate your professionalism and also they way you have eased my fears when I shared them to you."

Calgary family law client of Heather Fraese

Thank you Brett and Heather and the whole team at FC&Z. I would highly recommend using this firm. Not only did they help me accomplish my case, but were extremely professional and personal. They were there for me to answer any questions or concerns quickly and gave me great confidence during a very difficult time. If you are looking for great professionalism i would recommend FC&Z.

Calgary divorce & separation client of Brett Carlson and Heather Fraese

"Both Lauren and Gillian are knowledgeable lawyers who bring results. They communicate better then any other lawyer I’ve encountered. I am grateful to have had them assist through my divorce."

Divorce client of Lauren Zaoral and Gillian Croucher - Calgary

“I want to thank you. I hired you because you emphasized mediation, and I kept on hiring you in the face of one of my brothers and one of my friends insisting I hire a "bulldog" to counter (my ex’s) "bulldog." I'm glad I ignored their advice.”

Calgary family law mediation client of Heather Fraese

"After speaking with Mr.Carlson at this firm a huge amount of stress has been lifted off my shoulders, he was professional and incredibly knowledgeable with my situation and I look forward to working with him again in the future if needed."

Calgary family law client of Brett Carlson

“Brett was great, offered timely and helpful guidance and advice throughout the process. Thank you.”

Calgary divorce client of Brett Carlson

"Friendly, well rounded, knowledgeable, professional and ready to assist. I enjoy dealing with FC&Z. Gillian has helped make a high conflict family law situation less stressful. Thank you!"

Calgary family law client of Gillian Croucher

"The child support calculator provided on line through this firm is awesome. We have a long standing support agreement and we use this annually to update the child support amounts based on our T4's. Thank you for providing this great tool online which allows you lawyers to focus on cases that really require your help rather than simple accounting annually for us folks long through the process."

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Common Law Relationships and Separation in Alberta

1. Introduction

1.1 Definition of a common law relationship

In Alberta, common law relationships are referred to as adult interdependent relationships, which are recognized under the Adult Interdependent Relationships Act. These relationships are established when two people live together in a relationship of interdependence for at least three years, have a child together, or enter into an adult interdependent partner agreement. A relationship of interdependence is defined as a relationship where the partners share one another's lives, are emotionally committed to one another, and function as an economic and domestic unit.

1.2 Legal differences between common law and married couples

While adult interdependent relationships share some similarities with married relationships, there are important legal differences between the two. In Alberta, the Family Property Act, which was amended to replace the Matrimonial Property Act, governs property division for both adult interdependent partners and married spouses. This includes any time they lived together in a relationship of interdependence before they were married. However, adult interdependent partners are not subject to the federal Divorce Act, which governs matters such as spousal support and child custody for married couples. Adult interdependent partners must rely on provincial laws and common law principles to address matters related to separation, including support.

1.3 Determining the end of a common law relationship

Determining the end of a common law relationship, or adult interdependent relationship, can be less straightforward than determining the end of a marriage. Unlike divorce, there is no formal process for ending a common law relationship. Generally, a common law relationship is considered to have ended when the partners cease living together in a relationship of interdependence. Factors such as the length of separation, the intention of the partners, and their subsequent actions, like moving out and dividing assets, can all contribute to determining the end of the relationship.

2. Property Division for Common Law Couples

2.1 Governing legislation: The Family Property Act

In Alberta, property division for common law couples, or adult interdependent partners, is governed by the Family Property Act. The Act was amended to replace the Matrimonial Property Act and now applies to both adult interdependent relationships and married spouses, including any time they lived together in a relationship of interdependence before they were married. The Family Property Act outlines the rules and processes for dividing property when an adult interdependent relationship ends.

2.2 Jointly owned property and equal division

Under the Family Property Act, property that is jointly owned by both partners in a common law relationship is generally subject to equal division upon separation. This includes assets such as real estate, bank accounts, investments, and vehicles that are registered in both partners' names. Each partner is entitled to an equal share of the jointly owned property, regardless of their individual contributions during the relationship.

2.3 Unequal division and unjust enrichment

In some cases, an equal division of property may not be considered fair or equitable. If one partner can demonstrate that an equal division would result in an unjust enrichment of the other partner, the court may order an unequal division of property. Unjust enrichment occurs when one partner benefits unfairly at the expense of the other, and it can be established through factors such as one partner's significant financial contributions or the existence of an express or implied agreement between the partners regarding property division.

2.4 Exempt property and tracing

Certain types of property may be exempt from division under the Family Property Act. Exempt property can include assets acquired by one partner before the relationship began, inheritances, gifts received by one partner from a third party, and personal injury settlements. However, if exempt property has been used for the benefit of both partners or has been converted into jointly-owned property, it may lose its exempt status. In these situations, a process called tracing may be required to determine the exempt portion of the property and ensure that it is not subject to division.

3. Spousal Support for Common Law Partners

3.1 Eligibility for spousal support

Common law partners, or adult interdependent partners, may be eligible for spousal support upon separation under the Family Law Act in Alberta. To be eligible, one partner must demonstrate that they have experienced financial hardship as a result of the relationship or its breakdown. Spousal support aims to address any economic disadvantages faced by a partner, provide financial assistance for a partner who is unable to become self-sufficient, or help with the financial costs of caring for a child from the relationship.

3.2 Factors affecting spousal support

Several factors are considered when determining the amount and duration of spousal support for common law partners. These factors may 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 the partners' respective financial situations
  • 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

3.3 Calculating support and duration

Spousal support for common law partners is not automatically calculated based on a fixed formula. Instead, the courts may refer to the Spousal Support Advisory Guidelines (SSAG) for guidance. The SSAG takes into account the income of both partners, the length of the relationship, and whether there are children involved. However, the SSAG is only advisory, and the courts have the discretion to deviate from the suggested amounts based on the specific circumstances of the case.

The duration of spousal support can also vary depending on factors such as the length of the relationship and the ability of the receiving partner to become financially independent. In some cases, spousal support may be awarded for a specified period, while in others, it may be indefinite. It is important to consult with a family lawyer to better understand your rights and obligations regarding spousal support in a common law relationship.

4. Child Custody and Support for Common Law Separation

4.1 Governing legislation: The Family Law Act

In Alberta, child custody and support matters for common law partners are governed by the Family Law Act. This legislation applies to both married and unmarried couples and focuses on the best interests of the child when determining custody, parenting time, and child support.

4.2 Determining custody and parenting time

When common law partners separate, decisions about custody and parenting time must be made. Custody refers to the decision-making authority regarding the child's upbringing, while parenting time refers to the time each parent spends with the child. The Family Law Act emphasizes the best interests of the child as the primary consideration when determining custody and parenting time. Factors considered include:

  • The child's emotional, physical, and psychological needs
  • The child's relationship with each parent
  • The child's cultural and linguistic background
  • Each parent's ability to care for and meet the child's needs
  • The willingness of each parent to support the child's relationship with the other parent

4.3 Child support guidelines and calculations

Child support is the financial contribution one parent makes to the other to help cover the costs of raising a child. In Alberta, child support for common law partners is determined using the Alberta Child Support Guidelines, which mirror the Federal Child Support Guidelines under the Divorce Act. These guidelines consider the paying parent's income, the number of children, and the parenting arrangement.

In most cases, the basic child support amount is calculated using the tables provided in the guidelines. However, adjustments may be made based on factors such as shared or split parenting time, undue hardship, or the presence of other children from a different relationship.

4.4 Special expenses and extraordinary circumstances

In addition to the basic child support amount, parents may also be required to contribute to special or extraordinary expenses. These expenses may include childcare, healthcare, education, and extracurricular activities. The guidelines provide a framework for determining each parent's share of these expenses, usually based on their respective incomes.

In some cases, extraordinary circumstances may warrant a deviation from the guideline amounts. For example, if a child has special needs or a parent experiences significant financial hardship, the court may consider these factors when determining child support. It is essential to consult with a family lawyer to ensure that your child's best interests are represented and protected in all matters related to custody and support.

5. Co-Habitation and Pre-Separation Agreements

5.1 Purpose and benefits of co-habitation agreements

Co-habitation agreements are legal contracts entered into by common-law partners to establish the rights and obligations of each party during their relationship and in the event of a separation. These agreements can be beneficial for providing clarity and certainty regarding various matters, such as property division, spousal support, and the allocation of debts and assets.

Some benefits of co-habitation agreements include:

  • Defining each partner's financial responsibilities during the relationship
  • Establishing a plan for property division in case of separation
  • Protecting individual assets or inheritance
  • Reducing potential conflicts and legal disputes in the event of a separation

5.2 Enforceability and validity

To be enforceable and valid, a co-habitation agreement must meet certain legal requirements. In Alberta, these requirements include:

  • The agreement must be in writing and signed by both parties
  • Both parties must have provided full and accurate financial disclosure
  • Each party should have obtained independent legal advice before signing the agreement
  • The terms of the agreement must be fair and reasonable

If any of these conditions are not met, a court may deem the co-habitation agreement unenforceable or invalid.

5.3 Modifying or terminating a co-habitation agreement

Circumstances may change during a common-law relationship, and partners may need to modify or terminate their co-habitation agreement. Changes to the agreement should be made in writing, signed by both parties, and follow the same legal requirements as the original agreement.

It is important to consult with a family lawyer when considering modifications or termination of a co-habitation agreement. They can provide guidance on the legal implications and ensure that any changes are properly documented and enforceable.

6. Navigating the Separation Process for Common Law Couples

6.1 Negotiation and alternative dispute resolution

When common law couples decide to separate, negotiation and alternative dispute resolution (ADR) methods can be effective ways to resolve issues related to property division, spousal support, child custody, and support. ADR methods, such as mediation and collaborative law, involve working with a neutral third party or a team of professionals to facilitate communication and guide the couple towards mutually agreeable solutions.

ADR methods offer several advantages over traditional court proceedings, including:

  • Reduced costs and time spent on resolving disputes
  • Increased control over the outcome
  • Preservation of relationships, especially important when children are involved
  • Confidentiality of the process

6.2 Court proceedings and litigation

If negotiations and ADR methods are unsuccessful, or if one party is unwilling to participate, court proceedings may become necessary. Litigation can be a lengthy, costly, and emotionally draining process. However, in some cases, it may be the only way to protect one's rights and achieve a fair outcome.

During litigation, a judge will hear the case and make decisions on issues such as property division, spousal support, child custody, and support. It is crucial to work with an experienced family lawyer who can navigate the complexities of the legal system and represent your best interests.

6.3 Obtaining a separation agreement

A separation agreement is a legally binding contract outlining the terms of a couple's separation, including matters related to property division, spousal support, child custody, and support. This agreement can be reached through negotiation, ADR, or court proceedings. Once finalized, the separation agreement provides a framework for the couple to move forward independently.

It is essential to work with a family lawyer when drafting a separation agreement to ensure that it complies with the applicable laws and regulations and that your rights and interests are protected. A well-drafted separation agreement can help prevent future disputes and provide certainty and stability as you transition into your new life.

7. The Role of a Family Lawyer in Common Law Separation

7.1 Legal advice and guidance

Family lawyers play a crucial role in common law separations by providing legal advice and guidance tailored to each client's unique circumstances. They can help you understand your rights and obligations under Alberta's family laws, including the Family Property Act and the Family Law Act. A family lawyer can also explain the legal implications of various decisions and strategies, helping you make informed choices throughout the separation process.

7.2 Drafting and reviewing separation agreements

A well-drafted separation agreement is essential for protecting your interests and providing a clear roadmap for moving forward after a common law separation. Family lawyers have the expertise to draft separation agreements that address issues such as property division, spousal support, child custody, and support, ensuring that they comply with the applicable laws and regulations. They can also review any proposed agreements to ensure that they protect your interests and are legally enforceable.

7.3 Representing clients in negotiations and court proceedings

Family lawyers are skilled negotiators who can represent your interests in discussions with your former partner or their legal counsel. They can help you reach mutually agreeable solutions through negotiation, mediation, or collaborative law processes. If a resolution cannot be reached through alternative dispute resolution methods, a family lawyer can represent you in court proceedings, presenting your case effectively and advocating for your best interests.

By working with a family lawyer during a common law separation, you can ensure that your rights are protected, and you have the support and guidance necessary to navigate the complexities of the legal process.

8. Frequently Asked Questions About Common Law Separation

8.1 How long do we need to live together to be considered common law?

In Alberta, you are considered to be in an adult interdependent relationship (common law) if you have lived together in a relationship of interdependence for at least three years, or if you have a child together and have been living in a relationship of interdependence for any period of time. It's important to note that the time requirement can be waived if the couple has entered into an adult interdependent partner agreement.

8.2 Can common law couples claim division of matrimonial property?

Yes, as of January 1, 2020, amendments to the Family Property Act in Alberta allow for the division of property for common law couples, also known as adult interdependent partners. This means that upon separation, common law couples now have the same property rights and obligations as married couples in Alberta, including the division of assets and debts acquired during the relationship.

8.3 How does common law separation affect inheritance and estate planning?

Common law separation can have a significant impact on inheritance and estate planning. If one partner passes away without a will, the other partner may not have the same inheritance rights as a legally married spouse. To ensure that your partner is protected in the event of your death, it is essential to have a will and other estate planning documents in place. You should also review and update your estate planning documents after a common law separation to ensure they reflect your current intentions.

9. Additional Resources for Common Law Separation in Alberta

9.1 Legal resources and services in Alberta

  1. Alberta Courts: Information about the family court process and available resources
  2. Legal Aid Alberta: Offers assistance for individuals with low income who need legal help
  3. Resolution Services: Offers mediation and other dispute resolution services

9.2 Support groups and counselling services

  • Alberta Family Mediation Society: Offers mediation services and support for families
  • The Family Centre: Provides counselling, mediation, and support services for families

9.3 Educational materials and resources for common law couples

  • Government of Alberta: Family Law in Alberta – A comprehensive guide to family law issues in the province
  • Canadian Bar Association – Alberta Branch: Provides legal information and resources for the public
  • Community Legal Education Association: Offers legal information, education, and resources for Albertans

A Practical Legal Guide

Common-Law Separation

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