Your relationship is going well and you are thinking of moving in together. That’s great, but you both must realize there are significant legal responsibilities that come with a common-law relationship. Many of these are similar to those that govern a legal marriage, though there are differences.
That is why it is always a good idea to speak to a lawyer. The team at Demas Schaefer works with many married and common-law couples, ensuring their financial security is protected if their relationship comes to an end.
It’s really not called common law
While the term “common-law marriage” is still widely used, in Alberta the legal term for such a partnership is “adult interdependent relationship” or AIR.
Adult interdependent partners are defined in Alberta’s Adult Interdependent Relationships Act as two people who live together in a relationship of interdependence:
- for a period of at least three years;
- of some permanence (and less than three years) if the couple has a child together; or
- who have entered into an adult interdependent partner agreement.
A relationship of interdependence is when two people are not married to one another but still:
- share one another's lives;
- are emotionally committed to one another; and
- function as an economic and domestic unit.
The Adult Interdependent Relationships Act lists factors to consider when determining whether two people function as an economic and domestic unit. They include:
- the exclusivity of the relationship;
- how they structure household activities and living arrangements;
- how they present themselves to others;
- do they contribute to each other’s well-being;
- is one financially dependent on the other;
- do they care for or support children; and
- the ownership and use of the property.
Being in an AIR is legally important
Once a couple is recognized as being in an adult interdependent relationship, they can enjoy the benefits that arise under other laws. Those include:
Under the Family Law Act, an adult interdependent partner can apply for adult interdependent partner support – the equivalent of spousal support in marriage relationships;
Adult interdependent partners can make use of the Family Property Act in relation to the division of property;
- Under the Wills and Succession Act, an adult interdependent partner is a dependent, meaning that a surviving partner can apply for maintenance and support from the estate if the deceased does not make adequate provisions for them in their will.
- Under the Insurance Act, those in an AIR can receive certain insurance benefits.
- Under the Workers Compensation Act, payments are available to the victim’s adult interdependent partner on the event of death.
- Alberta’s Victim of Crimes Act also makes provisions for adult interdependent partners if they are victims of a crime.
Child support
Child support is the right of a child. For unmarried parents, that is governed by the Alberta Child Support Guidelines, which mirror the Federal Child Support Guidelines for married couples
In Alberta, the presumptive rule is that the natural parents of a child must pay child support while the child is under the age of majority, and often until they have finished their first post-secondary degree or diploma. A non-biological parent who treated the child as their own may also be required to pay child support.
The amount payable is determined using the Alberta’s Child Support Guidelines and the Federal Child Support Tables. The Maintenance Enforcement Program (MEP) is a government-established body that has the power to collect and enforce child support payments as a free service to you. Either party can register for the program, without the consent of the other, in order to make use of it. If neither of you register, then MEP will play no role and payments will have to be exchanged privately.
Generally speaking, child support is calculated by considering each party’s income, the number of children and the parenting schedule. There are various intricacies related to the calculation including different analyses where parenting is shared or the child is an adult, which is why the advice of a family lawyer is invaluable.
Property division in AIRs
Property division laws for those living in a relationship of interdependence changed on Jan. 1, 2020. Since that time, adult interdependent partners have enjoyed the same property division rules and protections as married spouses. Each partner must exchange financial disclosure according to a Notice to Disclose Application to ensure all assets and debts are divided fairly.
Generally speaking, each partner can keep the property they brought into the relationship, and some of the things they personally acquired during the AIR, such as gifts and inheritances.
Why you need to see a lawyer
Work with a lawyer to draw up the necessary legal documents to protect your rights in an AIR. These will include:
- A will, ensuring your wishes for your estate are respected if you were suddenly to die.
- An enduring power of attorney, giving someone you trust the authority to make financial decisions on your behalf if you need them to.
- A cohabitation agreement, a notarized document that spells out the rights and obligations for each partner in the AIR and sets out how you divide your property and deal with support if you separate in the future.
AIRs in Alberta
According to Statistics Canada, 17 per cent of couples in Alberta are living common law compared to 23 per cent across Canada. Edmonton has 8.8 per cent of couples in AIRs compared to 14 per cent in Wood Buffalo-Cold Lake.
Other related information from StatsCan:
- In 2021, nearly eight in 10 people aged 20 to 24 who were part of a couple were living with a common-law partner.
- Living common law is gaining popularity at older ages, accounting for 16 per cent of people aged 55 to 69 in couples, up from 13 per cent in 2016.
- From 1981 to 2021, the number of common-law couples increased by 447 per cent, a much faster growth than that of married couples over the same period (26 per cent).
- Marriage remains the predominant type of union. In 2021, more than three-quarters of Canadian couples were married.
- Among G7 countries, Canada has the highest share of couples that are living common law (23 per cent), mainly due to the popularity of this type of union in Quebec, where close to 43 per cent are common-law couples.
Call us for guidance
If you are entering into a common law or adult interdependent relationship, it is a good idea to ensure that your assets are protected in case it does not work out. The team at Demas Schaefer is ready to guide you. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.