Separation of Common Law Couples: The Court Process Main Steps – Dividing Property in Ontario Explained

Navigating the complexities of common law separation can be a daunting task. With numerous legal nuances and unique challenges, understanding the court process and your rights as a former common-law spouse or partner is essential. This blog post provides valuable insights into the intricacies of dividing property in Ontario and offers helpful guidance for common-law couples seeking to separate. Equip yourself with the knowledge necessary to protect your interests and ensure a fair resolution to your separation journey, by understanding the “separation of common law couples the court process main steps.”

Short Summary

  • Common law couples have unique legal rights and responsibilities when it comes to separation, including property division, child custody & support.
  • Seeking legal advice is essential for understanding these rights & navigating the court process successfully.
  • Resources such as lawyers, family law information centres (FLICs), and self-representation may be used in order to ensure a fair outcome.

Understanding Common Law Relationships

Common law couples in Ontario have greater recognition of their rights and now enjoy many similar benefits to those of married ones. Yet the treatment of assets division and support obligations upon separation can be significantly different from that for marriage dissolution cases. Thus, it is important for one or both parties involved to become knowledgeable about relevant legal rules before embarking on a common law split-up process by way of drawing up an appropriate agreement. A thorough understanding not only lessens tensions between the two individuals but also ensures they are equipped with sufficient facts regarding property ownership as well as financial assistance expectations should such a need arise after parting ways.


Requirements for Common Law Status

Common law couples in Ontario need to have been living together for at least three years or had a child from other parties to the relationship before they can be legally recognised. This will bring about certain rights and obligations just like those of married pairs. There is also an option called a cohabitation agreement that sets out both parties’ assets division if ever separation occurs.


It’s essential to understand the Canada Pension Plan (CPP) credit split, which applies not only to lawful spouses but also common-law ones. Credits earned during this arrangement are joint and then divided proportionally when it ends – known as Division of Unadjusted Pensionable Earnings (DUPE).


Legal Differences Between Common Law and Marriage

Common law couples have a great many of the same legal rights as those in marriage. There are distinctions when it comes to spousal support payments and property division. According to the Family Law Act applicable to common-law partners, any household items or other possessions purchased by either person are kept individualistically. While married couples partake in an equalization payment procedure that determines equitable distribution upon separation. Distinct regulations regarding alimony exist between these two types of relationships – that being said, it’s integral for common law pairs to be informed on their specific estate laws and get legal direction if/when needed.

Initiating Separation for Common Law Couples

For common-law couples, there is no official divorce procedure to go through when they part ways. Instead, the two parties involved can negotiate matters such as separation agreements such as asset division and child custody without requiring judicial action. Even so, it’s recommended that both sides seek legal advice or sign a separation agreement for added protection, particularly if children are present in the relationship or if some joint property exists. This will ensure that the rights of each party are safeguarded during their split-up process just like married people would do with a proper divorce proceeding.


No Formal Divorce Process

For common-law couples, there is no standard divorce procedure. But that does not mean that independent legal advice and consultation should be neglected. It can be essential to get through matters such as asset sharing and taking care of children in a way both parties deem equitable. For those with kids or possessions together, obtaining insight from an experienced family law attorney will ensure their rights are recognized when it comes to handling the required steps necessary for separation. Legal advice cannot only benefit them now. They will gain peace of mind knowing all aspects were considered before finalizing arrangements between themselves and their partner without intervention from the courts.*


Importance of Legal Advice

Common law couples need to secure legal counsel during the separation process so they can better understand their entitlements concerning property division, child custody, and spousal support. An attorney also offers guidance on how to handle family court proceedings while helping them organize essential paperwork for a successful resolution of issues in the family court process.


It is beneficial for these partners to draw up a legally binding cohabitation agreement that outlines each person’s rights when there is an eventual split-up, such as property ownership negotiations or other related matters.

Property Division for Common Law Couples

Common-law couples, who are not subject to the same rights when it comes to the division of property under Family Law as married couples or those living in a common-law partnership, may be able to make claims against each other for unjust enrichment if an unfair situation arises. This is based on the notion that one partner should not benefit from their spouse’s loss in terms of half the value of the net family property, which applies regardless of whether registered with any applicable family law act. By making such a claim they can both achieve fairness and justice through appropriate compensation regarding this particular matter according to contributions made by either side throughout the relationship priorly established.


Family Law Act Limitations

Married couples are covered by the Family Law Act when it comes to dividing their property at separation, but common-law partners have no such legal entitlements. To ensure a fair division of shared assets, like the family home or other jointly owned items owned by either partner, they can make an unjust enrichment claim. This requires legal action based on the concept that those who contributed financially should receive something back for this contribution and be entitled to part of said asset(s). Members of common law partnerships may still gain some benefits from using relevant laws in situations involving them and their partner’s possessions.


Unjust Enrichment Claims

Common law partners may have a claim to part of their partner’s assets, should they provide financial or other contributions that increase the value. This is known as unjust enrichment and can be sought when one individual has put in considerable work towards improving the family home but does not possess an equal share of it legally speaking. When assessing such claims, courts take into account how much was contributed by each party as well as its impact on property worth before awarding any compensation accordingly.

Spousal and Child Support in Common Law Separations

Common law couples must be aware of the rules and regulations applicable to their specific situation, since they may differ from those for married partners. For instance, spousal support might not even apply in this case. Likewise, child maintenance, will depend on both eligibility as well as custody arrangements established by the superior court or common law. It is therefore important that these pairs understand what benefits are available to them according to the requirements set forth through civil laws or statutes concerning marital status.


Spousal Support Eligibility

Common law couples should be aware of their potential rights to spousal support as set out in the Family Law Act. The length of time they have been together, and both parties’ means/needs are considerations that need to be taken into account when determining if common-law partners qualify for such aid. In order to protect themselves during a separation or dissolution process for common law spouses, it is advisable for them to seek advice from an experienced family lawyer who can guide them through this complex area of legal practice.


Child Support and Custody

Common law couples going through a separation process must still follow the legal requirements of the Children’s Law Reform Act. Act in regard to child support and custody. Both parents are obligated by law to pay an appropriate amount per child support guidelines based on their respective incomes and number of children, while the best interests of both emotional and physical well-being should be kept front and center when determining who has primary care. To make sure that all parties understand what is required under such circumstances, it can be useful to seek professional legal advice from qualified professionals.

Navigating the Court Process

The court system for common law separations can be difficult to navigate, especially when one is not knowledgeable about the legal procedure. It’s essential to understand how to file applications, react or respond to other applicants, and go through conferences/trials effectively in order to achieve a successful outcome.


It should also be noted that there are different types of applications that must meet deadlines. Failure to do so may result in Repercussions.


Filing Applications

In order to begin a court proceeding regarding common law separation, the required documentation must be correctly filed with the appropriate court along with associated costs. These documents may comprise a Statement of Claim, Notice of Family Claim, and Financial Statement depending on individual details surrounding your family law case alone. It is essential that you are aware as there can be differing charges for every kind of application submitted in each particular judicial system. Being sure all necessary papers have been carefully filled out according to instructions will help make sure nothing slows down or disallows an Application from being processed successfully by the courts.


Responding to Applications

If you are the Respondent in a common law separation case, it is imperative that you draft and submit your Answer on Form 10 to address all claims presented by your ex-partner as well as any counterclaims. Should custody or access of a child be desired, completion of Form 35.1: Affidavit in Support for Custody and/or Access should also be included with said Answer. Failure to file this paperwork within the timeframe established could lead to an undesirable court order being imposed against one without their attendance at proceedings beforehand.


Conferences and Trials

Family Law Rules must be followed to achieve a successful outcome in these proceedings, meaning both parties need to complete and submit all relevant forms. Form 17 and 17E: Trial Management Conference Brief is essential for participating in the trial management conference. At this meeting, the judge will set out any witnesses or evidence which is required as well as make note of the time needed before setting an official date for the case’s trial.


It is imperative that those involved prepare adequately. Making sure each party presents their full financial disclosure and giving a clear representation of necessary documentation such as signatures from said documents can guarantee justice prevails during family law disputes.

Legal Resources and Support

For common-law couples, navigating the complexities of separation can be daunting. Fortunately, there are multiple support systems available to help with this process. Utilizing a qualified family lawyer and making use of free information offered at Family Law Information Centres is key in providing much-needed assistance during these times. It’s important for those undergoing such an ordeal to recognize that they do not have to go through it alone. Resources exist which will provide all necessary aid.


Finding a Lawyer

The Law Society of Ontario and Legal Aid Ontario both provide a range of services for those seeking family law advice, such as free consultations or referrals. Through the online tool provided by the Law Society Referral Service, individuals can easily contact local lawyers who may be available to offer assistance in their language. This service also provides up to 30 minutes worth of consultation at no cost. There are legal aid clinics set up in universities around the province that permit common-law couples access to an hour’s worth of phone-based legal counsel without any charge whatsoever. Legal Aid Ontario offers financial help for non-legally married partners that face complex family-related matters involving separation from one spouse or another and violence toward either party among other issues pertaining to this specific field.


Family Law Information Centres (FLICs)

Family Law Information Centres (FLICs) are located across Ontario and offer free assistance to people dealing with family law issues. These centres provide informational resources, advice on the court process, and referrals regarding these matters. Legal Aid Ontario’s lawyers can be accessed at FLICs during scheduled days for independent legal consultations which help individuals become knowledgeable about their rights or obligations in a separation situation. Their provided services include reviewing documents as well as family law information centre such as giving general advice related to family laws.



Choosing to your own lawyer or self-represent in court can be a viable option for individuals without legal counsel. In Canada, people must understand their responsibilities when opting out of lawyer representation. This includes knowledge about the relevant laws and regulations applicable to your case.


Family law has its own specific set of procedures that you may need help with Family duty counselors provide advice on all practices of family law matters as well as support during settlement negotiations while guiding through the process in court — albeit they cannot actually represent you at trial though. To ensure successful navigation of all aspects regarding self-representation, it’s important to make use of resources such as FLICs or others offered by legal aid services, which inform individuals thoroughly so that every step is done properly before going into any proceedings involving family law practices.



Understanding your legal rights and obligations during a common law separation is important in order to ensure a fair resolution. Keeping informed on the court process, obtaining proper advice from lawyers, and using available resources can empower you when navigating this difficult journey. Knowledge really is power when it comes to separating as a common law couple!

Frequently Asked Questions

How do you separate a common-law relationship?

No legal action is necessary when severing the relationship with a marriage contract common-law partner, yet consulting an attorney or notary can help make certain that all matters are properly settled.


What are the steps to separation in Ontario?

Although not mandatory, it is highly recommended to seek legal or professional help when dealing with a divorce act or a separation in Ontario as this can guarantee that any resulting agreement will contain all the necessary details and be legally binding. This way, parties may avoid potential issues down the line. Professional experts such as attorneys or divorce mediators can provide invaluable assistance for drafting an accord of this kind.


Can you be common-law and separated at the same time?

It is possible for couples who have been living together for at least a year to still be considered common-law even if they are now separated. This means that individuals can remain classified as in a “common law” union while also being legally apart from one another.


How does property division work for common-law couples in Ontario?

Common law couples in Ontario don’t have their property divided under the Family Law Act, but rather according to each partner’s respective contributions eligible for a claim of unjust enrichment. These can be financial or non-financial such as taking care of bills and children respectively. It is essential that both partners’ contributions are taken into account when determining how the property should divide between them so that justice prevails through every step.


What are the eligibility criteria for spousal support in common-law relationships?

Common law couples who have cohabited for at least three years may be eligible to receive spousal support, as determined by the Family Law Act.

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