A common law marriage is more properly known as an Adult Interdependent Partnership or AIP. It is an acknowledgment of the ways that partners can build a life together without engaging in the formal marriage process. It also allows for the equitable dissolution of such a relationship.
Alberta has great respect for common-law partnerships, as does Canada. For example, common-law partners are eligible for spousal immigration benefits. Adult interdependent partnerships are essentially treated like marriages for the purposes of determining property rights and inheritance rights. Forming an AIP also allows both members of the partnership to purchase life insurance policies on one another.
This means that leaving the partnership isn’t just a matter of walking away from one another.
What Are The Requirements For A Common Law Marriage?
A common law marriage occurs when two individuals have lived together in a romantic relationship for three or more years, have had a child together, or have entered into an Adult Interdependent Partnership agreement with one another. Each party must be age 16 or older.
You can also sign an Adult Interdependent Partner Agreement, which is a formal document that two people sign to indicate they are in an AIP. You do not have to register these agreements, but each partner should have a copy of one. These agreements can serve a bit like prenups, which means you should involve a family law lawyer when you create them.
What Is A Common Law Partner Entitled To in Alberta?
Both partners are entitled to be involved in the lives of their children, which means if the agreement ends the separation agreement will have to include provisions for child support, visitation, and child custody just as if the partners had been formally married.
The common-law partners are both entitled to 50% of the property acquired from the date the relationship started. In practice, the property will be split in a “just and equitable” manner, just as in a divorce. In addition, either partner may seek spousal support from the other partner.
There is a distinction between property owned by both spouses and those owned by each of them. For example, an inheritance that went to a single partner belongs to that partner, not to both partners. However, there are instances where profits made off of property acquired by a single partner can become the property of both partners. Determining what is and is not owned by both spouses is one of the important functions that an Alberta family lawyer can fulfill for you.
How Do You Prove A Common-Law Marriage in Alberta?
You can usually use certain common documents to provide proof such as:
- Shared property deeds or leases.
- Shared utility bills.
- Driver’s licenses show you share the same address.
- Shared insurance policies.
- Joint bank accounts.
- Evidence that you are financially dependent on one another.
You can also provide affidavits attesting to the fact that your relationship is romantic and exclusive, or that you sleep in the same bed or do chores together.
Contrary to popular belief the relationship does not have to be sexual to apply. Platonic partners can also form an adult interdependent partnership, though such things are uncommon.
Can You Kick Your Common Law Partner Out Of Your House?
Forcing your partner to leave the home is only possible with a court order. There are circumstances under which an emergency court order may be obtained.
Neither party has to leave the house to begin a legal separation. You simply need to stop living like adult interdependent partners. That is, you might stop sharing meals and sleep in separate rooms. You can separate your bank accounts and stop paying bills together.
If one party leaves the home they will not necessarily have to pay the bills on that home. However, the partner who leaves may be compelled to pay spousal support.
What Happens When Common Law Couples Separate in Alberta?
While you can dissolve a common-law partnership at any time, it’s usually best to seek the help of a family law lawyer so that you can enter into a formal separation agreement.
You will negotiate this agreement much like a married couple would negotiate the terms of a divorce agreement.
This means that your separation should cover:
- Who gets each of the assets you have acquired together.
- Who will be responsible for paying each debt moving forward?
- Child custody and visitation.
- Who pays partner maintenance, if anyone, and how much.
- Deciding who pays child support.
As with a divorce agreement, these issues can also be battled out in family court, but it is usually more advantageous for partners to come to an arrangement on their own. Adult interdependent partners who are separating may also take advantage of alternative dispute resolution (ADR) or a collaborative process to come to an agreement.
Once the agreement is finalized, it will be enforceable by the courts. Both of the former partners will have their responsibilities clearly outlined. There is no question of who should be doing what and additional fights or arguments can usually be circumvented.
Once you separate you should move fast. The Family Property Act states that common-law couples have just two years following the separation to make a property claim. If you wait for too long you might find you only walk out of the relationship with whatever you happened to take with you when it ended.
Does The Mother Have an Advantage in a Common Law Custody Dispute?
No. Unless abuse or neglect is present Alberta courts usually prefer the child to have a relationship with both parents and favor custody agreements that provide something close to 50/50 legal and physical custody whenever it is feasible.
Need Help With Your Common Law Separation?
We have decades of experience crafting smart separation agreements that work. Our team specializes in complex cases and has solutions for your unique situation. We’re tough negotiators and fearless litigators who never stop looking out for your best interests.
We’ll help you create a workable separation agreement that helps protect your rights. Call (587) 689-3333 to get matched with one of our top-notch divorce lawyers today.
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