Family law: Marriage and common law unions distinctly different

On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Tuesday, August 28, 2018.

A lot of couples who don’t marry but who live together for many years mistakenly believe that the law automatically considers them married. Family law rules say that’s not necessarily so and to continue to mistakenly think it is may be a huge mistake. For instance, in some provinces — Alberta included — if spouses who weren’t married separate, they have no legal right to a share in their partner’s property unless they’re both title holders.

A partner can, however, launch an equitable claim to part of the property. In terms of other things like sharing of pensions, it’s the same sort of scenario. An unmarried partner may not be entitled to anything, though a common law partner could launch an unjust enrichment claim in this regard. An astonishing 40 to 50 per cent of all couples in Canada separate, yet many are unaware of how the law handles separation of unmarried partners.

When couples who are unmarried say it doesn’t matter that they’re not married, they may not realize that in many respects, it certainly does. There is a document, however, that can spell out all these things regarding a common law couple. A cohabitation agreement can identify what property is divisible and how. It can also address issues like spousal support and joint debts.

Misinformation or ignorance of family law rules can make an already difficult situation even more so. Getting the advice of an Alberta lawyer may help clear up any confusion regarding common law unions and the law. A lawyer may be able to offer suggestions concerning documents that would be beneficial to these relationships, such as a cohabitation agreement.

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