You don’t have to be legally married to gain a legally binding separation agreement. Under BC’s Family Law Act (2013), you are considered spouses if you have lived together in a marriage-like relationship for at least two years, or you have a child together and are living together.
A common law relationship ends when the couple separates. Separation happens when one or both of you announces that decision to the other and “marriage-like” aspects of the relationship end (sleeping together, eating together, doing household chores for each other).
Since you weren’t married, you won’t need to file for a divorce, but as common law spouses, you will still need to agree on how to share responsibilities and divide things.
When common law spouses who are separating agree on how to handle all issues and divide property and debt, they can walk away from the relationship without having to file a separation agreement, although they might choose to file one in court anyway to help ensure agreements are upheld.
Sometimes there are disagreements over belongings and responsibilities. When this happens, people often need help (from a family mediator, or a lawyer, or both) to come to a mutually beneficial agreement. Again, they may or may not choose to file that separation agreement in court to make it a legally binding document, however doing so would help make agreements enforceable. Either person could then use it to apply for a court order if the other spouse is not following the agreement.
Statistically, 38% of marriages end in divorce
More and more people are choosing to live in common law relationships. Common law was first recognized by Canadian census in 1981. Since then, common law relationships have increased from 5.6% to 16.7% (2011) of census families. Many of us come from divorced families or have had friends whose parents went through divorce, and it’s not hard to understand why we’d be leery of entering into marriage. Common law relationships are also more culturally acceptable now.
What many people who enter a common law relationship don’t understand is that even though you’re not legally married, some of the same rules apply if you separate as they would to divorce. While it can seem like forced commitment, the reason for this is to help protect families, particularly children, and to ensure assets and debt accumulated together are fairly divided should separation occur.
Any couple can separate without having to go through the legal system. When children, particularly minors, are involved, things change. The best interest of your children must be considered. A family mediator can help you thoroughly consider the issues and reach an agreement considered fair to everyone involved.
What might we have to consider in our agreement?
There are a lot of things to think about when creating a separation agreement. It’s not an easy process, but it’s important to avoid future disputes and unfair settlements.
Here are some basic things to consider when discussing your common law separation agreement:
● Where will the kids live?
● When will each parent be with the kids?
● How will you minimize the impact of the separation on the kids?
● How will holidays be shared?
● How will decisions about the kids be made?
● How will you communicate about the kids?
● How will you pay for two households?
● How much child and spousal support should be paid?
● How will family assets be divided?
● How much is your property worth?
● How will you share responsibilities for debts?
● How will you handle future disagreements?
It is important to note the date that you decided to separate (it is important in terms of support and dividing property and debt) and to get documentation together. Download a Financial Checklist for Dealing With Separation and Divorce.
Why use a family mediator?
Deciding exactly how you will split your assets, debts, and time with your children can be hard. You may feel strongly that you deserve more, or you may be worried that your spouse will try to manipulate you into making decisions you aren’t completely comfortable with. If you are willing to participate, a mediator will help by being an impartial facilitator who helps you have fair, balanced negotiations. They bring structure and process to otherwise messy, heated, unproductive conversations.
A mediator does not provide legal advice (that is your lawyer’s job), but they do help you come to agreement and sometimes also work on relationship and communication issues. This is not counselling (that is your therapist’s job), though the process can help you both come to a better understanding of one another.
People choose mediation because it is more flexible, collaborative and creative than court. Most times it’s faster and less expensive too. The real benefit of mediation is that you get to get to design solutions that work for YOUR family. You and your spouse participate voluntarily and keep control over the decisions.
Family mediators are specifically qualified under The Family Law Act. So, if you’re seeking mediation, be sure to check your mediator’s credentials.
Why choose a VISUAL family mediator?
Did you know that 90% of information sent to our brains is visual? This information is processed an astounding 60,000x faster than text! Most people are visual learners, which is why visual communication is so effective during the mediation process. During your common law separation, there will be a steep learning curve, new information and lots going on, and it’s important for you to focus on making clear decisions that help you get a fair agreement. The visual tools I use will help you retain important information from our meetings to ensure better comprehension and also a more efficient mediation process. Learn more about the power of visual communication.
You may not have thought about the implications of a common law relationship when you moved in together, but if you are separating and having problems coming to a fair agreement, then know that you have options. Both spouses have responsibilities and entitlements. Your partner can’t leave you high and dry when you have children to care for, and if you’re experiencing power struggles, mediation can help facilitate better communication. In the end, it’s important you both come to an agreement that is workable and fair for you and your children, if you have them.
Important: This is intended as information only. It does not replace legal advice. In working with a mediator, you will be encouraged to seek independent legal advice.