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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 10-16-2008, 02:53 PM
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Default Common Law, But still married to someone

My question is this:

If you have been common law with someone for 5 years but the whole time still legally married to someone else... Upon dissolving the common law relationship, does one partner have any grounds to go after property or money? Or does the law not recognize the common law relationship because the real marriage still exists? All property etc... is in one persons name.

Thanks in advance for any information.
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Old 10-16-2008, 06:20 PM
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The common law relationship will be recognized.
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Old 10-17-2008, 06:33 AM
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Quote:
Originally Posted by senna View Post
My question is this:

If you have been common law with someone for 5 years but the whole time still legally married to someone else... Upon dissolving the common law relationship, does one partner have any grounds to go after property or money? Or does the law not recognize the common law relationship because the real marriage still exists? All property etc... is in one persons name.

Thanks in advance for any information.
Do a search of this site, and you will find ample info on the laws surrounding CL unions. Since this is indeed a CL union, although not that long in duration, the ex can claim undue hardship with respect to any large value items like a home and seek to have the equity divided. With respect to support (money issues) if there are any children involved then child support is a given, and spousal support is a possibility.
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Old 08-19-2011, 12:24 AM
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Default Criminal Code

289. Repealed, R.S., 1985, c. 27 (1st Supp.), s. 41

Offences Against Conjugal Rights

Bigamy
Why anyone would want to do this, I don"t understand.
290. (1) Every one commits bigamy who

(a) in Canada,

(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or

(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.

Matters of defence
(2) No person commits bigamy by going through a form of marriage if

(a) that person in good faith and on reasonable grounds believes that his spouse is dead;

(b) the spouse of that person has been continuously absent from him for seven years immediately preceding the time when he goes through the form of marriage, unless he knew that his spouse was alive at any time during those seven years;

(c) that person has been divorced from the bond of the first marriage; or

(d) the former marriage has been declared void by a court of competent jurisdiction.

Incompetency no defence
(3) Where a person is alleged to have committed bigamy, it is not a defence that the parties would, if unmarried, have been incompetent to contract marriage under the law of the place where the offence is alleged to have been committed.

Validity presumed
(4) Every marriage or form of marriage shall, for the purpose of this section, be deemed to be valid unless the accused establishes that it was invalid.

Act or omission by accused
(5) No act or omission on the part of an accused who is charged with bigamy invalidates a marriage or form of marriage that is otherwise valid.

R.S., c. C-34, s. 254.

Punishment
291. (1) Every one who commits bigamy is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Certificate of marriage
(2) For the purposes of this section, a certificate of marriage issued under the authority of law is evidence of the marriage or form of marriage to which it relates without proof of the signature or official character of the person by whom it purports to be signed.


Hope this demystifies. I am wondering the same issue. I believe this should take precedence over the FLA.
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Old 08-19-2011, 08:15 AM
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lorlaman, you are simply barking up the wrong tree.

Criminal matters have nothing to do with civil matters. There is no end of examples where someone can be in court and found guilty of a criminal matter, and then end up in civil court facing damages for the same matter.

In the case of family law, just think about this example: A married person leaves their spouse, moves to a new town, lies about being single and marries someone else.

They have broken the law and my be subject to your criminal code charge of bigamy. (Mind you, good luck getting that prosecuted.) This doesn't change the fact that both of the other spouses married in good faith and each have a civil claim for property, support etc under the FLA.

A completely separate issue here is that a common law relationships are not marriages and the two parties are not considered spouses for any purpose under the FLA other than the calculation of spousal support. This is a legislative convenience, they could just as easily write a separate law for common law relationships, but instead they included one or two sentences in the relevent section of the FLA.
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Old 08-19-2011, 09:17 AM
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Hi Mess,
I understand what you are saying and the issue here, I believe, is how the FLA defines 'spouse'.

A response from littleman, seems to be very adamant to the opposite;

if one of the parties is still legally married (even legally seperated) there is NO assumption of common law until the final divorce decree is received by the courts......how do I know? My other half is legally seperated from his wife and has been many years and we have been living together for approx 6 years now and still cannot be considered common law (that is straight from a lawyer)......until both parties have a final divorce decree there is no assumption of a different marital status.........she has no claim to anything.....however if my partner dies I am legal beneficiary of his whole estate (he has no children and is documented on his insurances, will, etc)I copied this from another posting I answered.....hope it helps.....Im living proof of the legal answer

I am not trying to get a criminal law to stick in any way. I am simply implying that under the FLA rules, the definition of spouse would be directly affected by the federal law covered under bigamy. I would think, that if both parties in the CL relationship were aware of the existing marriage which is not void, as littleman described, would be a "form of marriage".

Try this example;
What if both parties knew that one of them were legally married to a former spouse and then entered into a legal marriage without a divorce being issued (bigamy). Later, the couple splits. Both ex's now have claim to property and support?
How do you divide the property, how would support be calculated? At some point, although there is entitlement to both, the paying spouse cannot support both ex's at the same level. I believe that the second spouse, would have no claim since the marriage was not valid to begin with.
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Old 08-22-2011, 04:34 PM
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each and every case is different of course. Every case has different circumstanes surrounding it. Mine has no other children other than mine from previous marriage involved. My current man has no biological children. My current partner still DOES NOT have a legal divorce from ex-wife however as I previously stated it has been seven years they have been separated. As far as our home goes we are tenants in common. This means that my childs interest in the home (if I was to die my childs inheritance) would be protected and his entitlement would be ther no matter what. This was done with a lawyer when we purchased the house, not an after thought
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Old 08-22-2011, 11:11 PM
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The might stand true for the home littleman, but I was very interested in the issue of not having two marital statuses. The question is still the same, and I would have thought that the federal law would trump provincial law, in that a legal marriage remains that way until there is a divorce. In the case of living common law, the common law (marriage like) relationship would not be recognized until the legal marriage was ended by divorce. Littleman seems to steer this way, others do not agree.
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Old 08-23-2011, 09:32 AM
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The CRA rules are that you must claim common law status after living together one year. They do not ask for divorce papers.
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Old 08-23-2011, 10:20 AM
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why would you file common law status when it legally doesnt take effect til 3 years of living together , doesnt make any sense at all. For you to be considered common law also you have to meet the requirements. Cannot be legally married to someone else, and three years continual cohabitation, or a child born of the union or a common law agreement entered into.
lorlaman - my information has come from a lawyers mouth not mine. I need to have my childs best interest (as I always have) covered. Dont get me wrong I love my man to death however if the paradise should blow up I need my child protected at all cost.
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