Common Law Separation In Alberta

There will be a number of factors to take into account when two people who have been living together as common-law partners in Alberta discuss how their separation will work, including but not limited to:

  • how they will obtain and maintain health, life, household and auto insurance;
  • what property will be owned by each of them;
  • what debts will be carried by each party;
  • whether support payments will be made;
  • if the parties have children who will share in their relationship with either parent; and
  • if one party is going to reside in the marital residence or if the house will be sold to benefit both parties equally and if there are outstanding liabilities on the mortgages.

Common law partners (or adult interdependent partners) should be advised that despite living together and calling themselves ‘common law’, they do not necessarily carry the same benefits as married spouses. This is why it is important for each partner to protect their own best interests by having a separation agreement (or cohabitation agreement) drafted.

Setting Out The Separation Agreement

Separation agreements are important for unmarried, common law partners in Alberta. This is because of the fact that the law has been trying to eliminate discrimination on the basis of marital status in Canada for almost a century.

By having separation agreements, the two parties can maintain a neutral ground in addressing concerns having to do with expectations about property division and support issues when separating. When children are involved, it is critical for both parents to be aware of their legal and financial obligations towards their children from birth to adulthood.

Separation Of Property

Separation of Property refers to the manner in which your property will be divided when you separate from your spouse, common-law partner or conjugal partner. The property can be divided equally or unequally depending on the agreement made by the two parties.

Separation of property exists when you and your spouse or common-law partner have built your property separately from each other. It is often mistaken for division of assets which applies when you are married. What many people don’t realize in Alberta, is that assets can be divided under separation of property as long as they were purchased after the couple started living together.

The same does not hold true for equalization payments that are paid out upon separation. In this case, you and your spouse or common-law partner may be entitled to receive equalization payments from the marital assets if certain conditions have been met during your relationship.

Division Of Assets/Debts

Despite having the same rights as married couples, common law spouses, who live together for a specified period of time (or in some cases have children together) may find that each person is required to “take one’s own things” when their relationship ends.

Despite the fact that there is no automatic entitlement to spousal support in Canada following a break-up, there are certain situations where it can be ordered by the court if deemed appropriate. So the bottom line for many common law couples is that they will face the same level of division of assets as married and legal spouse counterparts; 50/50.

Spousal Support Payments After Separation In Alberta

Regardless of whether a couple is married or living common law, when determining who pays what or whether spousal support should be ordered, judges are required to consider the “financial means and needs of both spouses.” When it comes to financial support obligations, often one spouse earns more than the other and is therefore required to make support payments.

Factors the court may consider include the length of the marriage, the assets and debts each party brought into the marriage (and at what point they were acquired), the strength of each spouse’s work history, their longer-term earning expectations, any pre- or post-separation child care arrangements, etc.

The issue of spousal support typically becomes more relevant to longer marriages (10+ years) where there has been an opportunity to accumulate assets over time, but also presents in shorter marriages depending upon the individual situation.

Child Support Payments

One significant factor when determining child support payments is the actual net income of each parent. This is their total gross income minus any reasonable and necessary expenses. For instance, if your monthly mortgage payment costs you $1,200, but that amount also includes water bills, gas, electricity, and various other utilities as well, only the part of the payment used to make the mortgage payment itself would count as a “reasonable expense.” Conversely, each parent’s actual out-of-pocket medical expenses are included in their net income contribution.

The Takeaway There are no required steps for a legal separation in Alberta if you are a common-law spouse. However, just because there is no official process, does not mean you should not protect yourself.

A separation agreement protects both parties and can avoid any miscommunications between you and your partner. Spending a little bit of time on an agreement will save you both money and future heartache down the road.