On behalf of Gary Kirk of Kirk Montoute LLP posted in Family Law on Wednesday, July 26, 2017.
When couples stand in front of each other and profess that they will be together until death do them part, the word “divorce” is nowhere on their radar. That’s no different for same-sex married partners, but as with heterosexual couples, life sometimes throws a curve ball. Personal differences, no matter how hard the couple tries, cannot be always ironed out. When same-sex couples divorce, are the legalities the same as they are for heterosexual couples when it comes to spousal support?
The Supreme Court of Canada legalized same-sex marriage in all provinces in 2005. When same-sex couples who were married since then decide to end their relationship, a divorce is required. However, as with non-married heterosexual couples, those in a same-sex common-law union in Alberta don’t need a divorce.
As with heterosexual couples, one partner in a same-sex marriage can make a claim for spousal support. While a married person can in theory make a claim for spousal suppport regardless of the length of the marriage, the same is not true of non-married couples who must qualify as “Adult Interdependent Partners” to be able to make a claim for spousal support. In practical terms, they must have been living together in a “marriage-like” partnership for at least three years before separation to qualify as AIPs.
In addition, at least one of the parties to married relationship must reside in Alberta for at least one year before being able to bring a claim for divorce and spousal support, while unmarried couples need not cross that residency threshold before bringing a claim for spousal support.
Of course, length of the relationship is only one consideration when determining entitlement to spousal support. Other factors include the means, needs and other circumstances of each, including the functions performed by each spouse during cohabitation and any order, agreement or arrangment relating to support of either spouse.
Source: Common Sense Divorce, “Same-Sex Divorce Separation“, Accessed on July 13, 2017
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