When two people live together without getting married they may acquire rights and responsibilities with respect to the division of family property, support, custody and access. Generally, there is no substantial difference in the law relating to married and common-law couples regarding custody and access. The test remains the best interests of the child. That same general rule applies to child support and the Court will resort to the Child Support Guidelines.
When there is a separation between a non-married couple and one spouse is dependant upon the other, the Court may order that one spouse pay the other spousal support. Such an order will only be made when the parties have lived together as husband and wife for a period of at least three years, unless the union has produced a child in which case an obligation to pay spousal support may exist notwithstanding that the relationship lasted less than three years. Once the Court has determined that there is an entitlement to spousal support in a common-law relationship the general principals governing spousal support are generally the same as those between married spouses.
Perhaps the greatest difference between common-law spouses and married spouses is with respect to the division of family property. Generally, there is no presumption that there will be an equal division of family property as there is between married couples. Rather, the law has provided remedies for common-law couples in the case where one person has benefited or been unjustly enriched by contributions of the other during the relationship and that other party has made some sacrifice or suffered some deprivation as a result of that contribution. Contributions can include labour or money. In these circumstances the Court may decide it is unfair for the other person not to be compensated for his or her contribution.
There are generally two ways to resolve a dispute upon marriage breakdown or the breakdown of a common-law relationship. One way is through the Court and the other is through a written agreement that can be made between the parties. It is far preferable for the parties to reach their own agreement that can be incorporated into what is commonly referred to as a separation agreement. The process is far less costly and, generally, the parties are happier when they are permitted to fashion their own agreement rather than leaving it to the Court. That being said, when the parties cannot reach their own agreement, even with the assistance of lawyers, either may apply to the Court for it to decide part or all of the case on their behalf.
If you require legal advice or legal action in a family law matter, Monteith Baker Johnston & Doodnauth Professional Corporation will provide friendly, professional assistance and relief from what is often a stressful experience.