Common Law Separation

1. I am not getting along with my partner. Should we separate?

Only you can answer that question. A temporary break can help couples deal with problems in a relationship or it may be the first step in ending a relationship that is not working out. There are counselling services that can help couples talk about their problems and come to a decision, or to come to terms with whatever decision you make.  You can find a counsellor or family therapist by looking in the Yellow Pages or doing an online search under 'Family and Individual Counsellors', or Psychologists.

The law does not say that once you are in a long-term relationship you must 'stick it out.' The law does provide ways of dealing with issues that arise as a result of separation.

You should get a lawyer's advice before making a decision, if only to fully understand your rights and responsibilities. Mediation or counselling services may help you deal with problems, come to an agreement, or decide what to do.

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2. What is separation?

Separation occurs when you are in a romantic relationship - in this case, a common law relationship - and you and your partner begin living separately, and are no longer 'partners.'

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3. What is a separation agreement?

If you have a cohabitation agreement in place with your common law partner, this agreement probably already deals with what will happen if you and your partner separate. If you do not have a cohabitation agreement, though, you can make a separation agreement when you separate from your partner.

A separation agreement is a written contract between you and your partner to live apart on certain terms and conditions. A separation agreement usually includes sections on parenting arrangements, support issues, and the division of property, assets, and debts. Like cohabitation agreements, separation agreements are usually written by lawyers. Both you and your partner should get independent legal advice to make sure the agreement is right for you. Separation agreements are sometimes called 'Minutes of Settlement.'

You are not required to get a separation agreement. If you do get one, you may be able to apply to the court to ask for it to be registered in certain situations. When a separation agreement is registered with the court, this makes it a court order, and it may be able to be enforced like a court order.

It is strongly recommended that you see a Nova Scotia family law lawyer to write your separation agreement. You may see example separation agreements on the Internet, or store-bought kits for writing your own agreement. Be very careful about using templates that you find online, or kits that you buy in a store. There is no organization that checks to make sure that these templates or kits are accurate, or that they are in a format that will be accepted by the courts in Nova Scotia. The only way to know that the agreement you are using is in the right format is to check with a family law lawyer, preferably one that works in Nova Scotia.

Be careful of hiring an online company to do your separation agreement. These companies are not regulated, and there is no guarantee that they are using the right form or completing it properly. To make sure that you are using the right form, always speak with a family law lawyer.

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4. Is a separation agreement the same thing as a court order?

No. You have to apply to the court to get a court order, and this order must be signed by a judge - or a court officer in some cases - to be official. Separation agreements are private contracts made between the parties.

The court does not prepare separation agreements. Lawyers usually prepare separation agreements. Sometimes you can make an application to the court to register your signed separation agreement.

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5. How do I register my separation agreement with the court?

You must have at least one original copy of the separation agreement, signed by both parties, witnessed and dated. You will have to file other court documents, and pay a court fee to apply to register the agreement. If child support is involved, one or both parties will have to provide income information to the court, depending on the financial arrangements. You should check with your local court to find out exactly what you need to file to register your agreement.

If you decide to apply to register your separation agreement with the court, you can use this Guide to help you.

When you apply to register your separation agreement, a judge will review the agreement. You will not have to attend court – the judge will review the agreement in their office, and will decide whether they will approve the registration. If the judge approves the registration, this means that your separation agreement is now a court order. Once this happens, if you ever want to change the agreement in the future, you will have to apply to the court to do this.

If you register your separation agreement with the court, this means that you can now have any child support or spousal support payments go through the Maintenance Enforcement Program.

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6. Do we have to get a lawyer to draft our separation agreement?

No, but it is strongly recommended that you have a lawyer write your agreement. Family law lawyers will have templates (example copies) of separation agreements that they use, and these templates will include the sections that you will need for your agreement. If you write the agreement yourselves without using a lawyer, you take the risk that you may miss a section that you should have included, or you may word something wrong. This may cause problems for you if you ever want to register your agreement with the court or if you want to enforce it, or if you discover later that you made a mistake. 

When you get a separation agreement put in place, especially if you write your own agreement, both you and your partner should get independent legal advice to make sure the agreement is right for you.

Be very careful about using a draft separation agreement that you find online or purchase from a store.

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7. Can a separation agreement be changed once it is signed?

It is possible to change an agreement, either by both parties agreeing to change it or a court ordering a change.

  • If you have a verbal agreement, you can change it by agreeing to the new terms. However, it is difficult to enforce a verbal agreement since it will only be your word against that of your spouse or partner, if there is disagreement about what the agreement was.
  • If you have a written agreement, the agreement may indicate it can be adjusted to meet changing circumstances, or, you and your spouse or partner can agree to changes. The changes should be in writing and witnessed.
  • If the agreement is registered in the court, and you and the other party cannot agree on changes, you can ask the court to settle the matter by filing a 'variation application.'

Keep in mind that once the agreement is signed it is a binding contract. Judges are reluctant to change agreements. The judge will have to be convinced that the terms of the agreement are unduly harsh, that you did not have legal advice before you signed it, or that you were forced into signing it.

Whenever parties sign an agreement, each party should keep an original signed version of the agreement.

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8. Can I get spousal support if I wasn’t married?

You may apply to the court for an order for spousal support whether you were married to your partner or not. In Nova Scotia, you have to be living with your partner for at least two years, or lived together and have a child together, before you can make an application for spousal support under the Parenting and Support Act.

Many factors need to be looked at to decide whether someone will be given spousal support. Some of these factors could include:

  • how long the parties were together
  • the ages of the parties when they separated
  • how likely it is for the partner seeking spousal support to be able to support themselves
  • whether one partner benefitted financially from the relationship, while the other party did not (for example, if you moved around a lot with your spouse because of their work, and lost out on better employment for yourself as a result).

You should speak with a lawyer to see if it is likely that you will be awarded spousal support. In Canada, there are guidelines that may be helpful to figure out how much spousal support you might get, and for how long, if you qualify to get spousal support. These guidelines, called the Spousal Support Advisory Guidelines, are not law, but they are a useful tool when dealing with this issue.

Please see the section on Spousal Support for more information.

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9. What laws can I use to make an application to the court after I separate from my common law partner?

If you and your partner still live in Nova Scotia, you may apply to the court for an order dealing with parenting arrangements for your children, child support, or spousal support under the Parenting and Support Act. These issues are dealt with in Family Court, or in the Supreme Court (Family Division), if you live within the Halifax Regional Municipality or Cape Breton. There are rules around where and in what court you can file your application, so check with court staff if you are not sure.

Dealing with the exclusive occupation of your residence, or division of your property or debts, can be complicated. You cannot use the Matrimonial Property Act to divide assets and debts if you are not married or not a part of a Registered Domestic Partnership. Instead, you may have to use other general legal principles - called 'common law principles' - to make your application. You may be able to use the Partition Act to apply to sell your home, if you owned it together. You should speak with a lawyer for advice on what to do in your situation.

Issues relating to exclusive occupation of your residence, property, debts, and division of assets are dealt with in Supreme Court, or the Supreme Court (Family Division) if you live in Cape Breton or the Halifax Regional Municipality.

Click here for a list of laws that may apply to you, if you are separating from your common law partner.


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Click on any of the links below to view the rest of the Common Law section:

Common law relationships & Registered Domestic Partnerships

Property, pensions & debts for common law couples

Common law separation links

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