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Common-law separation

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Anonymous Asked:

Is it necessary to get a legal separation if there are no assets? We are a common law couple of 19 years with 2 children. For the past 7 years (give or take) we have not really been a couple but continue to live in the same home. We do not share a bedroom or bank account. Can I just call Revenue Canada and change my status to single and get on with my life? Or does this need to be a legal thing? If it has to be done legally, does it have to be filed before we stop living together or can we go our separate ways then file once we are settled in our new homes? Custody and child support is not an issue, but will be dealt with legally for the sake of the kids.
Any information you can provide would be greatly appreciated.

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Jennifer M. Long, B.A. J.D.
5 years ago

I would recommend that you speak with a lawyer about negotiating a separation agreement. The agreement can be filed with the court, but it is not required to be; it will still be a legally enforceable contract.

Although property rights for common law spouses differ from their married counterparts, it sounds as though you have been sharing a home for at least seven years. Assuming that the home is owned either solely or jointly by you and your common law spouse, that is an asset that will need to be dealt with. Upon the breakdown of a common law relationship, parties retain ownership of property that is in their own name, and any jointly held assets are divided. However, where property is owned in one party’s name alone (such as a home) there is the possibility that the other party could make a constructive trust claim, claiming an equitable interest in the asset based on his/her contributions to the relationship and the value of the asset over the years. A lawyer can assist you in assessing whether such a claim is relevant in your case.

You have indicated that custody and child support are not an issue, but it is a good idea to deal with these issues formally in a separation agreement. Also, spousal support is another issue that
​may or may not be a consideration. A lawyer can help you determine whether there is an entitlement to spousal support. Again, I strongly recommend that you consult with a lawyer about your situation in greater detail.

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