Whether you have been married or living common law, as a spouse you have the right to apply for spousal support. If you are married, it is a two step process. Firstly, it must be determined if you are entitled to spousal support. Secondly, it must be determined how much spousal support and for how long spousal support should be payable for. If you are in a common law / adult interdependent relationship there may need to be a preliminary step to determine if in fact you were in a common law relationship. These are decided on an analysis of the circumstances of your marriage/relationship and its breakdown.
Marriage: If you are married, the Divorce Act (1985) sets out four objectives which will assist in determining whether a spouse is eligible for spousal support. These objectives are as follows:
In determining whether a spouse is eligible for spousal support, the specific circumstances of each marriage is reviewed. However, spousal conduct, or misconduct, is not a factor the court will listen to or consider when assessing entitlement to spousal support. The more prevalent factors which are relevant include the following:
If it is determined that a spouse is entitled to spousal support, the next step is to calculate the amount and duration of spousal support. You do have a choice, if consented to, on whether you want to pay / receive spousal support monthly or in a lump sum. There are different reasons for why one may be better for you than the other; this is best determined by an analysis of your own unique circumstances.
Common Law: If you have been living in a common-law relationship or an Adult Interdependent Relationship, the Family Law Act (Alberta) sets out the basic requirements to consider whether spousal support should be paid / received. In May 1999, the Domestic Relations Act (Alberta) was amended to allow common law spouses to apply for spousal support. The Domestic Relations Act (Alberta) has since been replaced by the Family Law Act (Alberta). The legislation provides that common law spouses who have no children must have lived together for 3 years continuously to be eligible to apply for spousal support. Where a child has been born to spouses in a common law relationship, a common law spouse may apply for spousal support provided they have lived in a relationship of some permanence, or if they have entered into a written Agreement that is an Adult Interdependent Partner Agreement under the terms of the Adult Interdependent relationships Act (Alberta).
The objective in the Family Law Act are:
The factors set out in the Family Law Act are:
- the length of time the spouses or adult interdependent partners lived together,
- the functions performed by each spouse or adult interdependent partner during the period they lived together, and
- any order or arrangement relating to the support of the spouses or adult interdependent partners,
If you have any questions or concerns about paying or receiving spousal support, please contact us to discuss.
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