You and your non-married partner have separated.  Were you “common law”?  Are you a “spouse”?  But your “…friend told you that after six months you are common law”.  What does this all mean, and why is it even important?

For starters, when non-married couples separate, the legal definition of spouse and whether you are in fact “a spouse” can have a significant impact on your legal rights and obligations. 

For instance, under the Family Law Act (the “Act“), and for the parts of the Act dealing with children, child support and spousal support, spouses are defined as:

• Married people,
• People who are not married but have lived in a marriage-like relationship for more than two years, and
• People who have lived together in a marriage-like relationship for less than two years but have a child together.

For the parts of the Act dealing with property and debt, spouses are defined as:

• Married spouses, and
• People who have lived in a marriage-like relationship for more than two years.

With respect to the two-year living together requirement, the Act requires the period of cohabitation to be “continuous”.   This requirement often creates debate, as separating couples often have differing opinions as to when they started living together and/or separated, or whether they “broke up” or not.  It is also not uncommon for couples to have different opinions as to whether they, in fact, lived together as spouses at all.  Sometimes one partner sees the relationship as a “spousal relationship” while the other sees it as merely a platonic situation.  The distinction is critical because whether someone is considered a spouse defines a person’s entitlement and obligations with respect to legal issues such as spousal support and property division. 

If separating couples do not see eye to eye on this issue, then litigation may be required to determine whether a spousal relationship existed, and if so during what period(s) of time.  Once it is established (either through agreement or court order) that a spousal relationship existed, then lawyers can better assess a party’s claims and obligations on these on various legal issues. 

If you have any questions about your cohabitation arrangement and require legal advice, we welcome you to come in for a consultation.