Common Law Divorce - FAQ's

If a common law marriage cannot be proven, what rights do the parties have regarding the property accumulated and any children born during the relationship?

Assuming that a common law marriage cannot be proven, the parties still have rights under other areas of law as to property acquired and children.  Regardless of whether the parties were married, the non-custodial parent is still responsible for child support and to provide health insurance for the children.  Since the children were not born into a marriage, there is no presumption that they are the offspring of the man and it may be necessary to file a suit to establish parentage.  If necessary, the court will order the man, woman and child to undergo genetic testing to determine parentage.

As to property, any property titled in both names will considered as owned in equal shares and if no agreement for one party to buy the other out, a suit for partition and sale is necessary.  The court will order that the property be sold and the net proceeds remaining after the expenses of the sale are paid will be divided equally.  Likewise debts will be allocated to the person incurring it unless some benefit was conferred on the other in which case each party would be allocated a share.

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