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What Is Common Law Separation?

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What Is a Common Law Marriage in Saskatchewan?

Saskatchewan law views common law marriage as a couple who have lived together for at least two years. Once the two-year point has passed, the couple has the same rights as a legally married couple. This means they have an entitlement to share equally in the net value of the family property that was acquired from the two-year date onwards, until separation and divorce.

If the couple has a child or children together, there are legal issues to decide even if they are not married or have never lived together. For example parents will decide who will have decision-making authority (previously called custody) and what will be the parenting schedule (previously called access). The law requires that parents decide these legal issues in the children’s best interests.

It’s important to note that not only do spouses in a common law marriage have the same rights as a legally married couple, they have the same responsibilities. That means that if the common law couple separates, they will have some legal obligations to attend to.

What Must Be Done if a Couple in a Common Law Marriage Want to Separate?

When a couple in a common law marriage wants to separate, they generally also want to live in separate residences and to create a separation agreement. This legal document specifies the division of assets and debts, if there are children, how parenting and child support will be handled, and if there is a spousal support entitlement, the amount and duration of that support.

The separation agreement can often be negotiated and put into a written format without going to court. However, it’s not uncommon for couples that are separating to have disagreements about various aspects of the agreement. To ensure it’s legally binding and to help smooth the process when there are disagreements, it’s highly recommended that the couple work with lawyers who focus on collaboration and can offer mediation if needed.

How Are Assets and Debts Handled Legally for a Common Law Marriage?

Saskatchewan’s Family Property Act directs couples in a common law marriage to divide property and other assets as close to equally as possible. If the couple had a cohabitation agreement that detailed who should get what during a separation, they would need to follow that. If there was no cohabitation agreement, the assets and debts should be divided as close to 50/50 as possible.

That may cause some back-and-forth negotiation and compromise (another good reason to work with collaborative lawyers).

Some assets, such as a house or car, can’t easily be divided in half. In those cases, the couple may need to be creative in dividing the assets so that each side receives approximately the same value. For example, if one spouse keeps the house, the other spouse may receive more cash for their share of the house’s value.
Debts are treated the same way, divided as equally as possible.

Why Can’t a Couple Living Together Unmarried Simply Separate Without Drawing Up a Separation Agreement?

It would seem logical that a couple that never legally married should just be able to separate on their own without any legal processes. However, because the couple is considered to be in a spousal relationship under Saskatchewan law, each party has rights and responsibilities that need to be addressed, or there may be legal ramifications later on.

One consideration is if a common law couple separates but doesn’t put their agreement in writing, and one of the common law spouses may bring a claim for their share of family property at a later date. One spouse might also want to bring a claim but if they haven’t done so within 2 years of separation that claim will expire under the Saskatchewan Family Property Act.

It is possible to have one spouse move out without a separation agreement, and it may be important to move out for safety reasons if there has been family violence. Meeting with a lawyer to discuss the next best steps in your unique situation is critical to understanding the consequences of moving out of the family home and how best to protect your interests.

Is There a Way a Couple Can Avoid Being Considered a Common Law Marriage?

Yes. The couple can enter into an interspousal contract (also known as a co-habitation agreement) that states the parties don’t want to be considered to be in a common law marriage. Because the legal ramifications of this are significant (because each side may be giving up rights that they would otherwise have as a common law spouse), it should be done with the assistance of an experienced lawyer.

How Can I Prove I Was in a Common Law Marriage?

Sometimes a third party might need proof of your common law spousal relationship (for example, the Canada Revenue Agency). One document that can be used as evidence of a common law relationship is a cohabitation agreement that was written and signed when the couple began living together. The common law spousal relationship can also be proven in a number of other ways such as:

  • IDs with addresses: Driver’s licenses or passports showing the address where the couple lived together.
  • Other documents showing the shared address: These could be bills for shared utility accounts or insurance policies and bills.
  • Lease or property ownership: Paperwork showing the couple shared a lease for a rental or the house deed or other closing papers for a home.

What Should I Do if My Common Law Spouse and I Want to Separate?

Call Panko Collaborative Law & Mediation at 306-518-8107 for a consultation. Separating after a long-term relationship can be stressful, even if you are not legally married. That’s why our team of experienced, knowledgeable separation and divorce lawyers focuses on a more holistic approach that emphasizes collaboration rather than confrontation. We can also provide mediation services, which can help couples work on calm negotiation and compromise.

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