TIP: Common Law is not the same as Married

Is common law the same in law as being married?

Before I can answer any question about common law relationships, I need to know: are we talking about dividing property, custody and parenting of children, child support, spousal support, income tax related issues, etc.

Most often, the questions from friends are directed at the rules for dividing property. The simple answer is that the law in Alberta for the division of common law property is not the same as the law for dividing marital property. In fact, in some cases, it is very, very different.

One could ask the conceptual question: how is it fair that married people acquire and divide their property under a different set of rules than common law couples. Indeed, why should walking down the aisle make that much difference. Also, if our Charter of Rights and Freedoms is intended to treat persons in similar circumstances similarly, then, shouldn't the rules be the same?

Our legislators and the Supreme Court of Canada have made a decision on this: the division of common law property in Alberta is not the same as the division of marital property. Our highest Court has held that people who actually go through the process of getting married have made a choice to be governed a certain way. The SCC found in the leading case on this subject that there is a fundamental difference between choosing to marry from choosing to live together unmarried. Consequently, the SCC held that the laws for dividing marital property can differ from the rules for dividing non-marital property without breaching any fundamental rights or freedoms.

Critics of the SCC ruling think that the decision ignores the fact that there are power imbalances in relationships and so not all parties to a relationship have necessarily made a 'choice' to be common law as opposed to married.

The point to take away is that the law is different if you are common law. Read on to find out how it differs. But, get legal advice on this point if you plan to live together or are separating.