Common Law Breakups – (Part 4) The Seperation Agreement…

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to ending a common law relationship, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. If you’re looking for a cohabitation agreement that avoids creating financial obligations on the parties and terminates when the parties get married, then check out our legal forms + video guides. You can contact me directly if you need a lawyer.

So this is the fourth blog in a series I’m writing about how property and other issues are dealt with on the breakdown of a common law relationship. In my first blog, I mentioned how common law relationships end differently from married ones because the Family Law Act does not give a non-married spouse rights to the other spouse’s property. Then I mentioned how non-married spouses use EQUITABLE doctrines such as UNJUST ENRICHMENT, CONSTRUCTIVE and RESULTING TRUST to try to create interests, rights and entitlements to the other spouse’s property. I reviewed these equitable doctrines in my second blog. In my third blog, I reviewed some examples of how courts have applied these doctrines to actual real life cases.

In this blog, I’ll be talking about how to deal with common law breakups through a separation agreement. It can be better than going to court (because it saves the parties time, money, and allows them to control the outcome). Remember: if you are cohabiting or planning on cohabiting with someone and don’t have a Cohabitation Agreement that deals with separation, then you’ll either need to try to negotiate a separation agreement or have the court determine what your rights are with respect to ownership and division of property, child and spousal support, etc.

Division of Property
As discussed in my previous blogs, common law spouses are not entitled to property rights under the Family Law Act. This means that they must raise separate claims (e.g. based on contract or equitable doctrines such as unjust enrichment, resulting or constructive trust, etc.) if they want to have an interest in the other spouse’s solely-owned property. In the Separation Agreement, division and ownership of property can be dealt with. For example, the parties can say that, even though one of them is the owner of the family home, both will be entitled to an equal share in the proceeds upon its immediate sale.

Spousal Support
If the parties have been cohabiting continuously for at least 3 years OR have a relationship of some permanence AND are the natural or adoptive parents of a child, then spousal support obligations may be imposed under the Family Law Act. While that Act primarily deals with the rights of married couples, Part III support obligations deals with Spousal Support and defines a spouse to include non-married couples who meet certain criteria (as defined above). Rather than go to court to determine what amount of spousal support is appropriate for one party to pay the other, the parties themselves can make arrangement through a separation agreement.

Child Support
If the couple has a child together, then child support obligations may be imposed under the Family Law Act. Once again, rather than go to court to determine what amount of child support is appropriate for one party to pay the other, the parties themselves can make arrangement through a separation agreement.

Release of Claims
In exchange for the parties agreeing to the terms of the separation agreement, one or both of them may require that the other party release them from certain claims. For example, in exchange for paying a certain amount of spousal support, one of the spouses may require the other spouse to release it from property claims (e.g. based on any oral or written agreement or based on equitable doctrines of unjust enrichment or resulting or constructive trust). Another example might involve a spouse agreeing to give the other spouse an interest in his or her property or a lump sum amount of money in exchange for releasing him or her from any spousal support obligations that may arise under the Family Law Act. These are just some examples of releases.

Ways in which the Separation Agreement can be Challenged
I’ve now covered a few of the major issues that are dealt with in a typical separation agreement for a common law couple. It’s important to note, however, that these types of agreements (as with all legal agreements) can be challenged on the basis of substantive or procedural irregularities. Substantive irregularities mean that the contract is not valid or enforceable because it is missing key terms, is vague or uncertain (and therefore cannot be interpreted), or goes against public policy. Procedural irregularities mean that the contract is not valid or enforceable because of problems in the way the parties entered into it. Examples of this include:

  • one party did not have independent legal advice (while this is not a legal requirement, it’s always a good idea to have this to avoid claims that the party did not understand the nature or consequences of the contract);
  • one party made a misrepresentation (a false statement) which was relied upon by the other party to enter into the contract to their detriment;
  • one party was under duress and forced to sign;
  • one party was under undue influence when signing;
  • the bargain struck was unconscionable;
  • there was a mistake in the contract (e.g. the final version did not reflect what the parties had agreed upon); and
  • the parties were not capable of entering into this type of agreement (e.g. they lacked mental capacity, were too young, etc.).

In case you’re looking for a cohabitation agreement that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

cohabitation agreement ontarioCohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Legal Forms.

All of Dynamic Legal Forms‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

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