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Common Law/Cohabitation Separation in Canada

Common law relationships occur when two individuals live together in a “marriage-like”, or conjugal, relationship. Common law separation varies from that of divorce in that the laws governing married couples do not apply to cohabitating couples. It is advised to enter a cohabitation agreement when in a common law relationship, as this allows parties to agree on division of property, support, and other matters which may be disputed if the parties end the relationship, as well as it allows the couple to determine their rights within separation before they cohabitate.

Common law relationships end when the couple ceases to live together; however some rights and responsibilities may persist. When dealing with property during a cohabitation separation, each party is able to keep what belongs to them, as well as each party is responsible for their own debts. If there is an asset in both names, then the value of that asset is divided equally between each party, and the couple decides how to divide it. If the event results in an unfair division of the asset, then the partner should make a claim filing for unjust enrichment, in which if proven, the party who was unjustly enriched is required to make reasonable restitution of the asset. Further, when handling child custody, access, and support, the same laws apply for common law couples as with married couples, in that common law individuals must also pay child support upon separation if required, and they are able to receive some form of child custody.

Further issues that are dealt with upon a common law or cohabitation separation include but are not limited to paying spousal support if the couple has cohabitated for three years or are in a relationship of some permanence and have children, and a time limit in certain provinces to apply for spousal support. Assets that a partner may acquire or not upon a cohabitation separation include receiving dependent’s relief on death of partner, not receiving equalization payment of death, and not receiving possession of the matrimonial home.

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