The Rights Of Adult Interdependent Partners (“Common-Law” Spouses) In Alberta, Canada

For the longest time, the term ‘common law’ referred to a couple that lived together, with or without children but wasn’t married. In 2003, the Adult Interdependent Relationships Act came into effect and since then ‘common-law’ is no longer used to describe this type of relationship in Alberta. It has, since then, been referred to as an adult interdependent relationship or partnership.  The “AIR Act” stipulates an adult interdependent relationship must possess a set of characteristics to be considered legal. This is because interdependent partners may have rights, benefits and responsibilities that are similar to married couples. Let’s explore what it means to be an interdependent partner and what rights they may have.

What is an interdependent relationship?

This legal definition of an adult interdependent relationship is available to same-sex and opposite-sex couples, as well as two non-conjugal persons who live together. They must share one another’s lives, be emotionally committed to one another and function as an economic and domestic unit. This may even include two members of the same family or friends. A person over the age of 18 becomes an adult interdependent partner after three years of cohabitation, even without having an official partnership agreement, or sooner if they have a child together.

What is the difference between a marriage and an interdependent partnership in Alberta?

To be married, a couple must obtain a marriage license and undergo a legal ceremony. Currently, there are two main differences between interdependent relationships and marriages:

1. In an interdependent adult relationship, each individual will keep what they owned individually before entering their relationship. Any joint property will be split thereafter.
2. If the husband of a married couple dies, the widowed wife receives a dower interest, i.e., lacking a will, she’s entitled to a portion of the deceased partner’s estate

There are also procedural differences;  when it comes to addressing law-related issues such as divorce, child custody and wills, married couples may apply under the Divorce Act, whereas adult  interdependent partners may only apply under the Family Law Act.

Can you be married and in an adult interdependent partner relationship?

In a recent case, Mitchell v. Reykdal, 2021 ABQB 301, Justice Anna Loparco ruled a man, who was romantically involved with a woman for 17-years while being married to someone else, was still part of an adult interdependent partner relationship. While technically, one cannot be in both types of relationships, Justice Anna Loparco discounted the case law from other jurisdictions given its unique circumstances. If you are still married but separated, i.e. not living together you can be in an adult interdependent relationship with someone else but may not sign an Adult Interdependent Partner Agreement.

How do you end an adult interdependent relationship vs a marriage?

To end a marriage, a court must grant a civil divorce. An interdependent relationship can end in the following ways:

1. The partners live separately or apart for one year, and one or more intends that the relationship is over.
2. The partners marry each other or one adult interdependent partner marries someone else.
3. A partner enters into another adult interdependent relationship with someone else.
4. One or both partners gets a declaration of irreconcilability under the Family Law Act.
5. The partners make a written agreement stating the relationship is over and there is no possibility of reconciliation.

What rights does an adult interdependent partner have to receive financial support for themselves and for their children?

The Family Law Act applies to both married and adult interdependent partners. This Act sets out the rights that the partners have to support for themselves (spousal support) and for their children. 

If an interdependent relationship has lasted for three years or longer, or a couple has a child together, an adult interdependent partner can apply for spousal support as well as child support. Both parents are expected to support the child until they reach the age of 18. A partner who is not the biological parent may be liable to pay child support, depending on the nature of their relationship with the child.

What asset division rights does an adult interdependent partner have?

As of January 1, 2020, the Family Property Act came into effect in Alberta and applies to both adult interdependent relationships and married spouses, although the older Matrimonial Property Act continues to apply in some situations.  In either situation, the partners are presumptively entitled to an equal division of the property they each acquired during the relationship.

Some property is exempt from such division, including inheritances, gifts from third parties, awards or settlements for damages, insurance proceeds or property owned before the relationship began. Property that is not divided equally may include gifts partners gave to each other or inheritance that accrued value during the relationship.  When property that is otherwise exempt from division accrues value during the relationship, the other partner or spouse may be entitled to a share of the increase in value, what the court deems fair under the circumstances

What will and inheritance rights does an adult interdependent partner have?

The deceased partner’s estate will be distributed according to their Last Will and Testament. However, the surviving partner has the right to occupy the family home for a period of 90 days from the date of death of the deceased partner. If the deceased partner dies without a will and descendants, the surviving partner inherits their whole estate.

Conclusion

Entering an ending an adult interdependent relationship comes with rights and responsibilities that is procedurally dealt with under the Family Law Act. While not the same as marriage, if the relationship ends, each adult interdependent partner is entitled to specific alimony, property and inheritance rights.

Calgary Family Lawyer

Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Family Law for over 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you.

Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.