Things to know in Common-Law Separation

Things to know in Common-Law Separation


Legal separation for common-law couples is the same process as it is for married couples. The difference is that married couples may also seek a divorce. Read on to learn more.

Common-Law Separation: How Does It Happen?

To legally divorce from your common-law partner, all you have to do is demonstrate that you WANT to live “separate and apart” from them. Legal separation is formed as long as at least one spouse has this wish and acts in accordance with this desire.

Once you are legally separated, you will likely want to make decisions about family law matters. Some family law issues you might be wanting to sort out are:

  • Who stays living in your house?
  • How your children will be cared for and where they will live
  • Who will make decisions for the children?
  • Whether you will be paying or receiving any financial supports, like child support or spousal support?
  • How property will be divided.

If you and your partner disagree on a range of issues that pertain to your relationship, you may need to write a “separation agreement” with a lawyer.

Some common-law couples have cohabitation agreements which outline how they wish their property and assets to be divided upon separation. If you and your partner have this sort of agreement and wish to deviate from it, in whole or in part, you will need a judge’s permission.

When it comes to child support, spousal support, and child custody and access, the law is the same for common-law couples as it is for divorced couples. However, the division of property is different for each.

Division of Property

The division of property for common-law couples normally entitles each partner to

1) the property they had when they started the relationship and

2) the property that they got while living with their partner.

You and your partner are responsible for repaying their own debts, such as credit card debt, lines of credit, loans, and mortgages. Two people can make an agreement that outlines who is responsible for which debts.

The only property you and your partner are required to share is the property that you own together. Examples of shared property include:

  • A joint bank account
  • A vacation home
  • A car

This property will be divided evenly. If the property is physical, and not monetary, it may be more difficult to divide. One partner may wish to buy the property from the other partner, or you may wish to sell the property together and split the profits.

Additionally, you and your partner are responsible for repaying shared loans, which means that you may end up having to pay all of the loans if your partner does not pay.

The exception to the division of property: Unjust enrichment and resulting trusts

Unjust Enrichment

You may be entitled to make a claim against the property of your partner if you can demonstrate that by keeping this property to themselves, your partner would be unjustly enriched. To demonstrate this, you must show that:

  1. You contributed to the property
  2. Directly (such as through paying for household renovations
  3. Indirectly (such as through caring for the home and children so that your partner could grow their business)
  4. Your partner benefited from your contribution
  5. There is no reason for them to keep this benefit

Resulting Trusts

Another claim that common-law partners can make is that some property, although in the name of their partner, actually belongs to them. This might be the case for you if

  • You contributed to purchasing a home that is in your partner’s name, or
  • Where you gave your partner property that they did not pay for.

The time limit for making a property claim is 2 years after separation for non-real estate, and 10 years after separation for real estate.

Both resulting trusts and unjust enrichments are difficult to prove. One of our family lawyers can help you figure out whether either of these options is right for you.

We highly discourage anyone from seeking out legal advice through this article. This article only provides general information and should you require assistance, please contact us to book a free initial consultation. You can reach our office at 905-366-0202 or contact us through our website here.

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