If you and your significant other are unmarried and separating, there will likely be legal issues to resolve. Married and unmarried couples have many of the same things in their lives to work on a relationship breakdown, like the children, the house, cash flow, and property. Unmarried couples do not need to legally dissolve their relationship like married couples do, but their legal status will change.
In some legal areas, like parenting and child support, the same law applies regardless of how long you’ve been living together.
In other legal areas, like property and partner support, the amount of time you’ve lived together may matter.
The laws that apply to unmarried couples living together depend on whether they are adult interdependent partners.
Unmarried couples may be adult interdependent partners. The law of property and partner support are different for unmarried couples that are adult interdependent partners and those that are not.
If you are adult interdependent partners, your property will be divided as if you were married. Also, you and your partner may claim partner support from the other.
If you are not adult interdependent partners, the law of unjust enrichment will apply to your property division, in the event of a relationship breakdown.
Unmarried couples that live together will become adult interdependent partners if they live together in a relationship of interdependence for at least 3 years or have a child together and have lived together for some permanence. You can also decide to be adult interdependent partners by entering into an Agreement that says you are.
Having properly drafted agreements or Orders are important to protect you in the future. There are significant differences between common-law relationships and legally recognized marriages.
The key legal parenting concepts and considerations are the same for unmarried and married parents.
The statues are different and the language differs slightly. Visit our Parenting page for details.
Child support is paid and calculated the same for all parents living in Alberta, regardless of whether they are married or not.
Additional statues apply to unmarried couples, with some additional details, but the law is the same. Visit our Child Support page for details.
Adult interdependent partners may claim partner support from each other.
If you have been in an “adult interdependent partnership”, you or your partner may apply for partner support under the Family Law Act. This support may be monthly amounts, for a definite time period, an indefinite time period or a lump sum.
The Court will take into consideration the condition, means and needs, and other circumstances of each spouse including the length of time of cohabitation, the functions performed by each partner during cohabitation, and any Order or other agreement between the parties.
Adult interdependent partners divide their property as if they were married. Unmarried couples who are not adult interdependent partners divide their property based on the law of unjust enrichment.
It can be difficult to imagine the possibility of not being together, when you’re happy in your relationship. But its possible legal implications make it important to plan for ahead of time.
It may feel overwhelming to have to think about how you want to deal with things if your relationship were to end. This is especially true once you’ve decided to move in together. However, for many partners, there are good reasons and advantages to thinking through this unexpected life change. You may decide that a Cohabitation Agreement is beneficial for you and your partner.
The goal of Cohabitation Agreements is often to create certainty, protect specific assets, and reduce the stress and conflict of a relationship break down.
You and your romantic partner have the option, before or after you have moved in together, to set out in advance what will happen to your home, other property (ownership and division) and finances (partner support) should there be an end to your relationship. You can even choose, ahead of time, to not go to Court and solve your potential disagreements in a private, efficient way.
Agreements typically do not include provisions on parenting or child support, nor lifestyle type clauses. An agreement can cover financial matters during cohabitation, on separation and death (often in conjunction with a Will). It can set out different provisions that cover possible scenarios and that apply different consequences.
If you and your special someone intend to marry, the agreement is called the Prenuptial Agreement. If you’re already married, it’s usually called a Marriage Contract. If you live together and don’t plan to marry, it’s called a Cohabitation Agreement. We discuss Cohabitation Agreements separately on their own page.
Cohabitation Agreements aren’t just for partners with pre-relationship or inheritance assets they want to protect.
Thinking about how you want to deal with property acquired during the relationship, the roles each of your play in your family, and how family priorities you want to preserve regardless of separation, can help to avoid stressful and costly conflict at a very difficult time.
Cohabitation Agreements can help to ensure your wishes are carried out after a relationship breakdown.
There are benefits to planning ahead.
Separating is hard enough without having to also turn your mind for the first time to how you want to divide your things and solve disagreements. People often make better decisions about how to deal with the logistics of a relationship breakdown before it happens.
Talking this through with your partner when you are in a good space is helpful. The stress of a relationship breakdown often effects the ability of partners to have productive discussions, creatively solve problems and make good decisions.
It is important to have an understanding of the current property and support laws – what property division and partner support could look like without an agreement – when thinking about how you would like to structure your Agreement. Knowing the law ahead of time will help you avoid circumstances imposed by the law that may not align with your values and wishes.
Your Agreement must comply with certain legal requirements.
Agreements must follow certain requirements to be effective and valid. To be legally binding in Alberta, your Agreement must comply with the Family Property Act (effective January 2020) or the law prior to January 1, 2020, if signed before then. For example, each party must have independent legal advice (their own lawyer) and sign an acknowledgment that each understands the nature and effect of the Agreement and any rights and obligation under the Act they are giving up for the Agreement. In the Family Property Act, if the Agreement is to apply after marriage, it must specify this. [this is confusing]
The Family Property Act will apply to “adult independent partners” who separate after January 2020. If this Act does not apply to your relationship, it is still recommended that each party have independent legal advice on the Agreement.
We will help you think this through and discuss things you may want to consider. Helping clients plan for the future and drafting these Cohabitation Agreements is a positive and productive process.