By Justin Clark and Ida Mirzadeh
If you have ever been involved in a family law dispute or been part of a discussion with respect to popular family law issues such as child support or property rights, you may well have heard some of the following common misconceptions:
- 1) “Common Law Spouses have the same property rights as Married Spouses”
There is no denying that the definition of “spouse” has evolved over the past few years. Our courts are becoming increasingly more inclined to provide a common law spouse with rights that are similar to married couples, especially if it is a longer relationship resembling a marriage. However, it is important to note the differences between married and unmarried spouses and the impact it will have when dividing property acquired during your relationship upon separation. Unlike married spouses, common law spouses generally have to prove that they contributed to the acquisition, preservation or maintenance of property before they may obtain an interest in it. There is no automatic right to a division of property.
- 2) “Child Support ends when my Child turns 18”
Although it is possible that child support could terminate when your child turns 18 this is not an automatic result, unless it is previously agreed to in writing or forms part of a court order. Children over the age of 18 who continue to attend school may still be entitled to child support. If you are currently paying child support it is wrong to assume that you may stop payments upon your child’s 18th birthday – You are likely to owe arrears of support. Always seek the advice of a family law lawyer prior to unilaterally terminating your support payments.
- 3) “There is no Child Support Payable in a Shared Parenting Arrangement”
Many believe that if the parents equally share time with their children that no child support will be payable. Child support is based on income and how much time the children spend with each parent. Therefore if your income is more than that of your spouse’s, a shared parenting arrangement is not likely to terminate your child support obligation.
- 4) “Re-Marriage or Re-Partnering will Terminate the obligation to pay or receive Spousal Support ”
Section 14.7 of the Spousal Support Advisory Guidelines discusses this concept in detail. There is little consensus in the decided cases about whether or not support should terminate once the support recipient is in a new committed relationship. Remarriage does not mean an automatic termination of spousal support. Certainly a remarriage can result in a fresh look and a reconsideration of the issue which could lead to a reduction or termination, however, this is not an automatic result, unless of course, it is specifically provided for in a Signed Agreement or Court Order. There are many factors that are considered when it comes to varying a spousal support order or determining whether there has been a material change in circumstances.
- 5) “My Spouse moved out of our Family Home therefore I can Change the Locks”
Just because you are listed as the sole legal owner of the property you occupied with your spouse during your marriage, does not mean that you have the authority to change the locks. Until this matter is addressed by way of a written agreement or court order, married spouses have a right to reside in the home, and participate in the sale or remortgaging of the home, even though they are not on title. It is crucial that you seek the advice of a family law lawyer prior to changing locks even if you are solely on title.
- 6) “Financial Disclosure is not Necessary in my Case”
The invasive and time consuming task of having to dig back three years (or even further) to disclose private and confidential financial documents like your bank and credit card statements to your former spouse, seems more like a form of punishment than a means to achieve an amicable resolution. In every family law case that deals with support or property, however, financial disclosure is required. From court actions to separation agreements and even when parties are simply signing a marriage contract, they need to exchange full and frank financial disclosure. If privacy is a concern, a good way to avoid having something as private as your tax returns filed as public record in court is to pursue out of court settlements by way of processes such as mediation and collaborative family law.
It is important to remember that there are no hard and fast rules when it comes to resolving family law issues. Every family law matter is different. We encourage our clients to remember that their disputes are unique and the final outcome will depend on a variety of different factors, which we as family law professionals can help you navigate through during this difficult and emotional time. If you or anyone you know has questions similar to the ones we have listed above, please contact a member of our family law group to provide you with the benefit of sound legal advice.
Justin Clark is a Partner at Simmons da Silva LLP
Ida Mirzadeh is an Associate at Simmons da Silva LLP
Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.