Your Rights And Obligations: The Basics For Common Law Couples On Separation.
Generally it takes a two or three year long relationship before the rules for division of married couples property apply to common law relationships.
What Is A Common Law Relationship?
Two people living together as a couple in a "marriage like relationship" are considered to be in a common law relationship. Gender is not a factor.
There are no legal formalities, no "piece of paper" or no religious ceremony required. Since there was no "legal" marriage, there is no need to get a divorce. In fact you cannot get a divorce, simply because you never married. You just go your separate ways and are free to marry at any time.
Generally common law couples must continuously cohabit for two or three years (depending on your province) before acquiring some, but not all, of the legal rights and obligations accorded married couples.
Common law relationships can not turn into legal marriages over time.
Some provinces permit the "registration" of your common law relationship which grants you most of the same rights as a married couple.
(But then "registering" is in a real sense the same as getting married isn't it, so are you no longer common law?)
No divorce is required upon separation because no marriage ever existed.
What Are The Major Differences Upon Separation Between Being Married And Being In A Common Law Relationship?
Division of Property: Generally each person keeps what belongs to them upon separation and is responsible for their own debts
Common law does not give any right to equalize family property acquired during the relationship. There is a vague legal concept called "unjust enrichment" which is difficult to prove and requires a very lengthy and expensive court battle to establish. It is seldom worth the cost and trouble. . . at least under present laws
The Matrimonial Home: Unless you own the home you have no rights to a share in its value upon separation. In fact you could be removed from the house at any time with no notice or recourse. You are in a sense a guest in the home and little more.
Common law relationships bestow no ownership in the "matrimonial home."
Support: You must have lived together for two or three years (depending on your province) to have any rights to receive (usually the woman) or obligation to pay ( usually the man) support payments after you separate.
If you have a child together you may have some support rights.
You must apply for support within 2 years of separation or you lose all rights to any support payments
Hidden Assets: Common law partners have no right to prevent the other party from depleting or hiding assets pending separation
Inheritance: Common law partners have no right to share in an estate where your partner dies without a will.
Nor do you acquire any rights to a "fair share" of his estate if he does not leave you what you want in his will.
What Are The Main Similarities Between Marriage And Common Law Relationships In Canada?
Child Support: Your child support rights and obligations are the same whether you are married or common law. The woman gets and the man pays.
Child Custody: The old shibboleth "the best interests of the child" is applied. This usually means that the best interest of the mother determines who gets child custody and support.
In Canada men have virtually no chance of getting custody of their children. They only get to pay and pay and pay without any rights whatsoever, even after they die.
Death Relief: Where a party depends on the support of the other, upon his death, the woman may even be able to get support even from a dead partner's estate.
Name Change: Parties in a common law relationship can change their names as they wish. The children's surnames may be changed in some circumstances. Legal advice is needed to determine what you can do with your children's names
Adoption: Common law parties (regardless of gender) have the same rights to adopt children as legally married couples do.
CanLaw's Guide To The Law in Canada For The Layperson On Divorce, Separation Agreements, Custody, Access, Child Support, Spousal Support And Equalization Issues