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Can You Be in a Common Law Relationship If You Are Not Divorced From Your Ex-Spouse?

Learn about the legal implications of being in a common law relationship if not divorced and how to navigate this complex situation effectively. 

It is not uncommon for people to enter into a new relationship before finalizing their divorce from their ex-spouse. If this new relationship qualifies as common law or, in Alberta, an “adult interdependent partnership” [“AIP”], a person may find themselves carrying legal obligations towards more than one person simultaneously. 

While a person can be in an AIP/common law relationship prior to finalizing their divorce, there are important legal considerations to keep in mind. 

This article will explore what it means to be in an AIP/common law relationship in Alberta, the potential legal implications of not yet being divorced, and the interplay between a person’s responsibilities arising from their former relationship and their new AIP/common law relationship. This article will also contemplate what steps a person may take to ensure that their rights and obligations are properly addressed during this transition period. 

What is a Common Law Relationship vs. a Legal Marriage?

At What Point Do Two People Become “Common Law”?

It is important to understand that, unlike the inherent intentionality of marriage, two people can become AIPs/common law partners without intending to do so.

In Alberta, common law relationships are defined by the Adult Interdependent Relationships Act [“the Act”]. According to the Act, there are three (3) ways in which someone can become an AIP/common law partner:

  1. If the person has lived with the other person in a relationship of interdependence for a continuous period of not less than 3 years;
    1. A relationship is one of interdependence if the partners (a) share one another’s lives, (b) are emotionally committed to one another, and (c) function as an economic and domestic unit
    2. For people to be functioning as an “economic and domestic unit”, the Act says that all circumstances of the relationship must be taken into account, including:
      1. whether or not the persons have a conjugal relationship;
      2. the degree of exclusivity of the relationship;
      3. the conduct and habits of the persons in respect of household activities and living arrangements;
      4. the degree to which the persons hold themselves out to others as an economic and domestic unit;
      5. the degree to which the persons formalize their legal obligations, intentions, and responsibilities toward one another;
      6. the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well‑being;
      7. the degree of financial dependence or interdependence and any arrangements for financial support between the persons;
      8. the care and support of children; and
      9. the ownership, use, and acquisition of property.
  2. If the person has a child with the other person, by birth or adoption; or
  3. If the person has entered into an adult interdependent partner agreement with the other person, pursuant to section 7 of the Act. 
    1. Such an agreement cannot be entered into if (a) one party is already in an existing adult interdependent partner agreement, (b) one party is legally married, or (c) one party is a minor, unless the minor is above 16 years old and their guardian has provided prior written consent.

There are a few circumstances in which two people cannot be considered common law partners even if they meet any of the above criteria:

  1. People who are related by blood or adoption may only become AIPs through an AIP agreement, and only if both parties are above the age of majority
  2. People who are in a relationship where one partner provides domestic support or personal care to the other for a fee cannot be AIPs
  3. Someone who is already an AIP cannot enter into another adult interdependent partnership
  4. Someone who is legally married and still living with their spouse cannot be an AIP

At What Point Do Two People Become Former AIPs?

Unlike a marriage, which ends only by way of divorce, there are five (5) ways that an AIP/common law relationship may end:

  1. The AIPs enter into a written agreement that provides evidence that they intend to live separate and apart without the possibility of reconciliation;
  2. The AIPs live separate and apart for more than one year, and one or both of the AIPs intend that the relationship not continue;
  3. One AIP marries a third party;
  4. If the relationship is not the result of an adult interdependent partner agreement, and one AIP enters into an adult interdependent partner agreement with a third party; or
  5. One or both of the AIPs obtains a declaration of irreconcilability pursuant to section 83 of the Family Law Act.

Can You Enter a Common Law Relationship If Not Divorced from Your Ex-Spouse?

If a person is not yet legally divorced but meets the above criteria of an AIP relationship, they will become a new common law spouse, with two (2) exceptions:

  1. A legally married person cannot become an AIP while they are still living with their ex-spouse (see section 5(2) of the Act); and
  2. A legally married person cannot become an AIP by way of an Adult Interdependent Partnership Agreement (see section 7 of the Act).

Complications of Common Law Relationships when Not Legally Divorced

Like married couples, AIPs can choose to modify or opt out of the rules for the division of property or partner support provided for in the Family Property Act and the Family Law Act by executing a cohabitation or separation agreement. Here is a brief explanation of how the legislation deals with the following issues in the absence of an agreement otherwise:

Property Division

In 2020, Alberta amended the governing legislation, now called the “Family Property Act,” to address how the property of both married spouses and AIPs will be divided; in this respect, married couples and AIPs have substantially the same legal rights. The main difference between the division of property for AIPs as compared to married spouses arises as a result of the nature of an AIP relationship. 

Married spouses may have been in a relationship of interdependence prior to getting married, and the property accumulated during that time is also subject to division. With common law couples, however, their relationship is defined as one of interdependence, so property acquired prior to the adult interdependent partnership will not be subject to division.

What happens to property acquired while someone is still married and also now in an adult interdependent partnership?

As with any relationship of interdependence, whether through common law or marriage, property owned before the relationship or received as a gift or inheritance during the relationship is considered to be exempt from division, and will wholly remain with the owner of that property. Therefore, any property owned prior to a common law relationship is subject to division between the married couple, even if this property is subsequently used to acquire property with the common law spouse.

For example, say that Person A and Person B are married but intend to divorce. They have been married for 5 years and share some property acquired during their marriage, including a condo, mortgage, a few bank accounts (both joint and individual), and a joint credit card. Person B has entered into an adult interdependent partnership with Person C. Person B uses some money from their separate bank account to put a downpayment on an apartment with Person C. Person B puts down $10,000.00, and Person C puts down $5,000.00.

When Person A and Person B divorce, the $10,000.00 that Person B used for the downpayment on the apartment with Person C would be subject to property division between Person A and Person B, as this property was acquired during their marriage. Person C would have no claim to the $10,000.00. Similarly, Person B would have no claim to the $5,000.00 that Person C put down on the apartment if that money was acquired prior to their AIP relationship.

What if Person C acquired the $5,000.00 while Person B and Person C were in a relationship?

The law is not clear on this, and research proposals have been made regarding how to handle it. However, there are two clauses in the Family Property Act that may be of some assistance.

Section 8 of the Family Property Act outlines factors that must be considered when parties are distributing their property. Subsection (f) says that one consideration is “whether the property was acquired when the spouses or adult interdependent partners were living separate and apart,” and subsection (m) says that a judge may consider “any fact or circumstance that is relevant,” which may include a party’s new relationship. 

Property division is not clear-cut; however, the legislation encourages division of property that is fair based on the contributions of all parties, even if this looks different than a division based strictly on legal ownership.  

Spousal Support

AIPs have the ability to make a claim for partner support. Before anyone acquires spousal support obligations, the common law partner would need to first prove entitlement.

Child Support

If common law partners share a child, they acquire similar obligations towards their child as married couples have, and must make child support payments.

Inheritance

When someone passes away and the deceased’s will does not make provision for their adequate maintenance and support, family members may apply to the Court for provision for their maintenance pursuant to section 88(1) of the Wills and Succession Act [“WSA”] Spouses are recognized as family members and may therefore make a claim against the deceased’s estate. However, if a common law partner would like to make a claim for their maintenance, they must first establish that they fall into the definition of “family member” within section 72 of the WSA. 

How Kirk Montoute Dawson LLP Can Help You Navigate the Intricacies of Common Law Relationships and Divorce

If you have recently separated from your former spouse and believe you may have entered into a common law relationship prior to finalizing your divorce with your former spouse, please contact one of the family law lawyers at Kirk Montoute Dawson LLP for advice or representation.  One of our lawyers would be happy to review your specific circumstances and provide you with guidance and next steps based on your individual situation and the family laws that apply to you.

Author: Kyrie Bouscal

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