Ending a relationship is never easy, and for unmarried couples in Canada, separation can be especially confusing. Many people assume that common law separation works the same way as divorce, only to discover that the legal rules can be very different, depending on where you live in Canada.
If you are asking questions like what happens when common law couples separate, what am I entitled to in a common law separation, or whether you need a formal agreement, you are not alone. This article explains what a common law separation agreement is, who should consider one, what it should include, and how it fits into Canadian family law.
What Is a Common Law Separation Agreement?
A common law separation agreement is a written contract between two people who were in a common law relationship and have decided to separate. It sets out how issues such as property, debt, support, and parenting will be handled after the relationship ends.
To understand what a common law separation agreement does, it helps to first understand what is common law.
In Canada, common law partners are couples who live together in a marriage‑like relationship but are not legally married. What defines common law varies by province and by legal context. For example, for spousal support purposes, partners may be considered common law after living together for a certain period or after having a child together.
Because common law partners do not divorce, there is no automatic legal process that governs separation. A common law separation agreement fills that gap by creating certainty and reducing conflict.
Who Should Consider a Common Law Separation Agreement
A common law separation agreement can be helpful for many couples, but it is especially important if:
- You lived together for a significant period of time
- You share children
- One partner supported the other financially
- You purchased property together or made unequal contributions
- You want clarity about what happens next
Many people ask what is a common law spouse entitled to when a relationship ends. The answer depends heavily on the facts and on provincial law. A separation agreement allows couples to resolve these questions proactively, rather than leaving them to a court.
What Should Be Included In a Common Law Separation Agreement
Every relationship is different, but most common law separation agreements address similar core issues.
Division of Property and Assets
One of the most common questions after a common law relationship separation is what am I entitled to in a common law separation?
Unlike married spouses, common law partners do not have an automatic right to equal division of property across the country – this depends on the law in your province. In provinces without legislated property rights for common law couples, ownership is often determined by title. However, claims based on trust or unjust enrichment may apply.
A common law separation agreement can clearly set out:
- Who keeps which assets
- Whether one partner will be compensated for contributions
- How jointly owned property will be divided or sold
Debts and Liabilities
The agreement should address responsibility for debts, including credit cards, loans, and lines of credit. This is especially important if debts were incurred jointly or for shared living expenses.
Clear terms help avoid future disputes and protect both partners’ financial stability.
Spousal Support / Partner Support
Another frequent concern is what is a common law spouse entitled to in terms of support.
In many provinces, common law partners may be entitled to spousal support if certain criteria are met. A separation agreement can confirm whether support will be paid, how much, and for how long, or whether support is waived.
Child Custody and Parenting Arrangements
If children are involved, a common law separation agreement can outline parenting arrangements, including decision‑making responsibility and parenting time.
While parents can agree on these issues, any arrangement must reflect the best interests of the child. Courts retain the authority to review parenting provisions if concerns arise.
Child Support
Child support is treated differently from other terms. Parents cannot contract out of child support obligations.
A common law separation agreement should reflect the applicable child support guidelines and clearly state how support will be paid, reviewed, and adjusted over time.
Dispute Resolution
Including a dispute resolution clause can help manage future disagreements. This may involve mediation, negotiation, or arbitration before going to court. Essentially, the purpose of these clauses is to ensure the couple makes every possible attempt to resolve their disputes, sometimes with the help of a professional like a mediator, before either of them files a claim in court.
Going to court to resolve a dispute tends to be very expensive, and also increases conflict and stress. Because of this, including dispute resolution clauses is highly recommended.
Legal Considerations
To increase enforceability, a common law separation agreement should:
- Be in writing
- Include full financial disclosure
- Be signed voluntarily
- Ideally be supported by independent legal advice
These steps help ensure the agreement will be respected if challenged later by one member of the couple.
Benefits of Having a Common Law Separation Agreement
There are several benefits to having a common law separation agreement.
It provides clarity at a time of uncertainty, reduces the risk of future disputes, and allows couples to resolve issues privately rather than through litigation. Additionally, many financial institutions will require separation agreements in order to deal with shared property (for example, taking one person off of the mortgage for the previously shared home).
For many people, the biggest benefit is peace of mind. Knowing what happens next can make it easier to move forward.
Limitations of a Common Law Separation Agreement
A common law separation agreement cannot resolve every issue.
Courts may set aside agreements that are unfair, lack disclosure, or conflict with public policy. Child support and parenting terms may be revisited if circumstances change. If you’d like to read more about what can make family law agreements invalid, click here.
Understanding these limits is part of making informed decisions during separation.
How to Create a Common Law Separation Agreement
Many people wonder what happens when common law couples separate and how to formalize the process.
Generally, creating a common law separation agreement involves:
- Gathering financial information
- Discussing key issues openly
- Drafting clear, realistic terms
- Reviewing the agreement carefully
- Signing with appropriate formalities
Some couples work with lawyers, while others use guided online tools combined with legal advice. The right approach depends on complexity and comfort level.
Frequently Asked Questions
Do I need a lawyer to separate from a common law partner?
You are not legally required to have a lawyer, but independent legal advice is strongly recommended. It helps ensure you understand your rights and increases the likelihood that the agreement will be enforceable.
What is the difference between common law separation and divorce?
Divorce applies only to married couples. Common law partners separate but do not divorce. The legal rules around property and support are different, which is why separation agreements are especially important for common law couples.
Can I change the terms of a Common Law Separation Agreement?
Yes. Agreements can be amended if both partners agree or if circumstances change significantly. Any changes should be documented in writing.
Is There a Way a Couple Can Avoid Being Considered Common Law Spouses?
Because what defines common law depends on provincial law and specific circumstances, it is not always possible to avoid common law status. However, cohabitation agreements and clear financial arrangements can reduce uncertainty.
Final Thoughts
A common law separation agreement is a powerful tool for clarity and closure. Understanding what is common law, what happens when common law couples separate, and what am I entitled to in a common law separation allows you to make informed choices during a difficult time.
I founded Jointly because I want to empower more Canadians with the knowledge and tools to create relationship agreements that work for them, at a price they can afford. My big dream? That reaching more Canadians with Jointly ultimately keeps more families out of the court system when relationships breakdown, which can be slow, expensive and traumatic. (I may or may not have personal experience with this ????)
When I'm not lawyering, I'm most likely hiking with my dogs, kayaking the coastal waters around North Vancouver, or hitting the sauna and cold plunge.
- Common Law Separation Agreement. What Is It and What Should It Include? - January 22, 2026
- Can a prenuptial agreement include lifestyle clauses? - January 22, 2026
- What is a Conjugal Partner? - November 10, 2025
