Until you are divorced, a marriage does not end legally. In a few cases, we have seen those legally married spouses are not divorced by the Court, and they get into a new relationship or start living with another person in a conjugal relationship. Remember, polygamy is a criminal offence in Canada under the Criminal Code of Canada. Nevertheless, if you enter a new relationship with another person, when your divorce order is not issued, legal complications can affect your rights and obligations.
Spouse Defined in the Family Law
Family Law Act, section 29, defines the spouse:
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.
Subsection 1 (1) defines the spouse as follows:
“spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
Given the definition of ‘spouse’, a separated spouse (not yet divorced) who lives with another person for more than 3 years or has a child together, will be considered cohabiting and common law partners under the Act.
Legal Complications if you enter a New Relationship in the Absence of Divorce
There are legal complications if you enter a new relationship in the absence of a divorce. In the following, I would try to capture some of the legal complications that would affect rights and responsibilities in both relationships:
- There might be outstanding equalization and division of property issues involved with your married spouse. For instance, if you have a matrimonial home and you start living with another partner in the home, it does not affect your married spouse’s right to the matrimonial home and would also not affect the equalization between married spouses.
- If you start cohabiting with another person, it will not make any change in your responsibility to pay the child support and/or the spousal support. However, if you are in a relationship with a new person, and you have a child together from this relationship, in case of separation between you and your common-law partner, you would have to pay child support for that child also.
- If your common-law partner has children from a previous relationship, a claim of child support may be made against you for that partner’s children in case you have demonstrated a settled intention to act as a parent for those children.
- There might be some inheritance and beneficiary issues if a common law partner dies in the absence of a divorce order.
It is always recommended that you speak with a Divorce & Family Lawyer before taking any step when you are dealing with separation or divorce proceedings. IQBAL LAW is here to help you in your difficult time to protect you and your children’s interests.