UNDERSTANDING COMMON LAW SEPARATION
Common law relationships are becoming more common all over Canada, including Nova Scotia as people delay getting married until they are older or choose not to get married at all. In Nova Scotia, common law relationship is defined as living together in a marriage like relationship. A common law relationship creates many of the same legal obligations as a marriage does but there are some important differences.
WE CAN HELP.
If you are the Halifax area and need help understanding your legal rights during a Common Law Separation, visiting a lawyer is an excellent place to start. The law in Nova Scotia can be different that in other parts of the country and especially the United States. Often people end up genuinely mistaken in understanding their rights if their information comes from TV or Google.
Our law firm in Tantallon offers an ‘Issue Review Consult’ where you’ll have an opportunity to sit down with a family lawyer and fully explain your situation. The lawyer will give you their opinion on what your options are, including their best guess on possible outcomes and costs. It’s a no obligation consult and often clients leave with a homework list of steps they can take on their own without further involvement from the lawyer. The cost is a fixed fee of $100+tax.
DIVISION OF PROPERTY
One of the most significant differences between common law and a legal marriage is how property is divided if the relationship ends. The Matrimonial Property Act, which creates the default that all assets and debts accrued during the time of the marriage are shared equally applies only to legally married couples. There are some exceptions, but generally if you are married, your house, bank accounts, RRSPS, vehicles, pensions and other real estate will be shared equally.
There is no such presumption for common law couples. The Parenting and Support Act is the legislation that governs the way common law, or unmarried couples split up in Nova Scotia. The basic rule for separating common law partners is that you leave the relationship with whatever you own in your name. Whatever is owned jointly has to be split evenly including the house, joint bank accounts etc. People in common law relationships may not realize this, and it can lead to unfair outcomes if deals are made without both parties consulting a lawyer familiar with the law in Nova Scotia.
It is possible, especially where there was a long-term common law relationship with a lot of financial interdependence, to make a claim to get a share of assets that were not in your name, but it can be a long and legally complicated path to travel.
CHILD SUPPORT & CUSTODY
Custody and Child Support are not affected by a distinction between common law and marriage. The only consideration for making these types of decisions are what is in the best interests of the children involved. It doesn’t matter if the child was born from a short-term fling or a 20-year marriage, the best interests of the child are the only consideration of the court in determining who pays child support and how much those payments are. Child support payments are strictly based on a formula that considers each parent's income and percentage of parenting time.
EXCLUSIVE POSSESSION OF THE FAMILY HOME
Whether you are renting or own your home with your common law partner, deciding who gets to stay there, even in the short term, can be a crucial decision. If you and your partner can not come to an agreement, you can apply to the court for a determination of who stays and who goes.The court will look at the best interest of the children if any are involved but if there are no children, they will consider practical issues like other housing options and the effects of domestic violence.
A couple who separate have been living together in a “marriage like relationship” for two years or more may be eligible for spousal support. This is not an automatic entitlement. The amount and duration of spousal support are based on several factors including the length of the relationship, each person’s income and child support payments.
OTHER APPLICABLE LEGISLATION
The distinction between common law and legal married individuals is important when considering other pieces of legislation too. Two example (of many) are the Testator’s Family Maintenance Act (TFMA) and Intestate Succession Act, (ISA).
The TFMA is a law that allows spouses and children of a deceased person to challenge their will if they were not adequately provided for. Under the TFMA, common law partners are not considered a spouse and they cannot make an application for a portion of the estate under this law.
When a person dies without a will directing what to do with their property, they are said to have dies intestate. In that case, the ISA directs how the estate should be divided. Generally, the ISA give most of the property to the legally married spouse and the children of the deceased. If you are not married, you are not considered a spouse and you may not get any of your partner’s estate.
How Much Does It Cost to negotiate a common law Separation?
It is difficult to predict the costs of resolving a custody dispute in Nova Scotia because it depends on so many variables. The most effective way to save money is to work on a negotiated settlement instead of going to court. Litigation can be very time consuming and expensive.
If you’ve separated from your Common Law partner and have worked out all the terms, our family law lawyers can draft a legally binding Separation Agreement that dots all the ‘I’s’ and crosses all the ‘T’s’ under the laws of Nova Scotia for a flat rate of $750+HST plus our office disbursements.
If you are still working on ironing out the terms, or if it turns out you and your Ex are less in agreement on the details than you though you were, we charge at an hourly rate. Fees are always explicitly discussed upfront so you don’t end up with a run-away bill.
INTERIM AND FINAL ORDERS
Family disputes involving custody, child support and parenting time in Nova Scotia can be complicated and take many months or even years before they are resolved. However, even while a trial is being planned, Nova Scotia courts can issue temporary orders for custody, care, child support, possession of the home, and other pressing issues. These stay in place until a final order is in place so even though they are 'temporary' they can last for months. It is always a good idea to seek legal advice before attempting to go before the court on your own.
For those who do not want to get married but want to make sure things will be fair in the event the relationship ends, a Cohabitation Agreement can be a great way to work out the details of a break up. Similar to a pre-nuptial agreement, a cohabitation agreement is a legally binding contract between the couple. It is signed before contemplating separating and outlines the details of what things will look like in the event that the relationship ends. It can set out the details of parenting, financial maintenance (support payments), property division and any other issues the couple want to address.