Separation can be a painful and arduous experience for most people that go through the process. Common-law separation is no exception. If contested, going through a common-law separation can be complicated. Since couples in common-law marriage are subject to the same legal rights and obligations as traditionally married couples, they are required to navigate the same legal proceedings as traditional marriages.
A lawyer with extensive experience in handling common-law marriage cases can help couples decide terms that are mutually favourable to both parties. The following are 4 ways a lawyer can help in a common-law-separation.
1. Burden of Proof
While, in most cases, the spouses in common-law marriages can simply go their separate ways, a partner who wants to gain at the expense of their former partner must first prove a common-law union. If both partners agree to having made a commitment to each other, this will not be much of a hurdle. In Ontario, a common-law union is recognized when the couple have co-habited with each other for at least three years or have a child together.
If either party disagrees or denies that a common-law marriage exists, the other spouse has the burden to prove to the court that it has. In these cases, the spouse looking to exercise their rights must present evidence such as joint bank accounts, copies of tax returns, or insurance policies that prove the existence of a common-law relationship.
An experienced family lawyer is knowledgeable in collecting the information required to prove that a common-law union existed or if needed disprove claims about the validity of a common-law marriage.
2. Filing for separation
For parties filing for a common-law separation, understanding the legal rights and responsibilities can be a frustrating and confusing task. The procedure for filing for a separation after common-law union requires that a party file documents requesting the Family Court to dissolve a common-law marriage. There are several grounds for a Court to grant a common-law separation including failure to perform a marital duty, incompatibility (no-fault), cruelty, or adultery.
An experienced lawyer can help you navigate all aspects of the separation process and file all required documents to start the process. Clients want to complete the separation process as quickly as possible in order to move on with their lives and an attorney can definitely make sure everything that is needed is filed to accelerate the process.
3. Property division
One of the most important and complicated responsibilities that spouses face when ending a common-law marriage is dividing property. The rules about division of property in divorce apply in a common-law-separation as well. If the spouses are unable to reach agreement on a way their assets get divided, the Court will listen to submissions from parties and pass down a judgement that is binding.
A lawyer can attend hearings on your behalf and advocate for you in the property division process. Any written separation agreements signed in the presence of a witness may affect a party’s property and support rights. It is advisable that legal advice is sought as a lawyer can help a client understand the agreement and all consequences before signing.
4. Financial matters
The Court may order either party to pay alimony or child support to their former partner in the form of a lump sum payment or regular monthly payments. The Court may also vary future payments based on any changes in circumstances. Although the spouse listed on a debt is legally responsible for paying it, both parties may work out an agreement where a former common-law partner is to assist in paying the debt since it was garnered when both parties were still together.
An attorney can represent a party and ensure that they will not pay more than what is fair for alimony, child support or debts if an agreement is sought and can represent their client if any financial issues need to be contested.
