Common Law Divorce - FAQ's

Is it necessary to obtain a divorce to dissolve a common law marriage?

A common law marriage is just as valid as a formal marriage and a divorce or annulment is required to dissolve it.  A common law spouse is entitled to the same rights as such as child support, a share of the community estate, temporary spousal support and possibly post divorce spousal support.  If the marriage is ten years or longer, under certain circumstances, the wife may be entitled to post divorce spousal support for up to three years.  This is usually awarded in cases where there is a considerable disparity in earning capacity or where the wife has stayed home, raised the children and took care of the house and put off her own education or career.

A divorce action must be commenced within two years of the date that the parties ceased living together or there arises a rebuttable presumption that they did not intend to be married.  This is crucial since the intent of the parties to be married is one of the facts that must be proven.  Without a finding that the parties so intended, there is no common law marriage and therefore no divorce.

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