Common law partners in Northwest Territories gain full property division and spousal support rights after two years of continuous cohabitation under the Family Law Act (SNWT 1997, c. 18). Unlike legally married couples, common law partners cannot obtain a divorce decree since they were never formally married. Instead, separation occurs automatically when one partner moves out, though financial obligations to each other and any children remain fully enforceable through the territorial courts. The NWT is one of only four Canadian jurisdictions granting common law partners equal property rights to married spouses after the qualifying period.
Key Facts: Common Law Separation in Northwest Territories
| Requirement | Detail |
|---|---|
| Cohabitation Period for Rights | 2 years, or any duration with children together |
| Property Division System | Equitable distribution (judicial discretion) |
| Spousal Support Eligibility | Same as married couples after qualifying |
| Residency for Court Filing | 1 year in NWT (property/support claims) |
| Approximate Court Fees | $200-$600 CAD (verify with registry) |
| Family Home Protection | Yes, under Family Law Act, s. 45 |
| Primary Legislation | Family Law Act, SNWT 1997, c. 18 |
| Free Mediation Available | Yes, up to 9 hours through FLMP |
Who Qualifies as a Common Law Spouse in Northwest Territories
Under section 1 of the NWT Family Law Act, you become a common law spouse entitled to property division and support rights after living in a conjugal relationship for two continuous years, or immediately if you have a child together regardless of cohabitation duration. This definition applies equally to same-sex and opposite-sex couples. The two-year threshold is strictly interpreted. Periods of temporary separation may or may not interrupt the calculation depending on the circumstances and the parties' intentions during the separation.
The NWT definition differs significantly from federal definitions used for income tax (12 months) or immigration purposes. Courts examine multiple factors to determine whether a conjugal relationship exists, including shared living arrangements, sexual and personal behavior, social activities, economic support, financial arrangements, and the parties' attitude toward each other. A couple may live under the same roof without being in a conjugal relationship if they maintain separate finances, bedrooms, and social lives.
When You Automatically Become Spouses
Having a child together creates immediate spousal status under the Family Law Act, regardless of how long you have cohabited. This means a couple who has a child after only six months of living together has the same property and support rights as a couple who has lived together for a decade. This rule protects primary caregivers who may have reduced their workforce participation to care for children and would otherwise lack property claims.
How Common Law Separation Differs from Divorce
Common law separation in Northwest Territories requires no court filing or judicial decree to become legally separated. The moment one partner permanently moves out with the intention of ending the relationship, the separation is complete. This stands in contrast to married couples who must obtain a divorce order under the federal Divorce Act before their marriage is legally terminated. Common law partners simply cannot get divorced because they were never married.
However, this procedural simplicity masks substantial ongoing legal obligations. Both former partners retain financial duties that must be addressed through either a written separation agreement or court order. Property accumulated during the relationship remains subject to division claims. Spousal support obligations may exist. Parenting arrangements and child support for any children must be formalized. Without addressing these matters, either partner can bring a court application for years after separation.
| Issue | Married Couples | Common Law Partners (2+ years) |
|---|---|---|
| Formal Process to End | Divorce required | No formal process |
| Property Division Rights | Automatic under Family Law Act | Same rights after qualifying |
| Spousal Support | Available under Divorce Act or FLA | Available under Family Law Act |
| Parenting Orders | Under Divorce Act | Under Children's Law Act |
| Limitation Period | None for divorce | 2 years for property claims |
| Family Home Protection | Yes | Yes, under FLA s. 45 |
Property Division for Common Law Partners
The Northwest Territories uses equitable distribution rather than automatic 50/50 division for property claims. Under section 36 of the Family Law Act, courts have broad discretion to divide property in a manner that is fair and just considering the specific circumstances of each relationship. This approach differs from provinces like Ontario or Saskatchewan where married couples face mandatory equalization calculations.
Property subject to division includes the family home (regardless of whose name is on title), vehicles, pensions accumulated during cohabitation, RRSPs, TFSAs, investment accounts, business interests, and other assets acquired during the relationship. Pre-relationship assets, inheritances received during the relationship, and personal injury settlements are generally excluded from division under section 36(3), though they may be considered if intermingled with family property.
Valuation Date Matters
The valuation date for property division is typically the date of separation, not the date of any court application or trial. Under section 36, assets are valued as of this date, meaning post-separation increases or decreases in value generally belong to the individual owner. Failing to establish a clean separation date can cost $10,000-$200,000 in disputes over whether asset growth occurred before or after separation. Documenting the exact separation date in writing is critical.
Family Home Protections
Both common law partners have rights in the family home under sections 44-50 of the Family Law Act, regardless of who holds legal title. One partner cannot unilaterally sell, mortgage, lease, or encumber the family home without the other's written consent or a court order. These protections apply immediately once the cohabitation period or child-based threshold is met. Violation of these provisions can result in the transaction being set aside.
The Unjust Enrichment Alternative: Kerr v. Baranow Claims
Common law partners who do not meet the two-year threshold (and have no children together) may still pursue property claims through the common law doctrine of unjust enrichment following the Supreme Court of Canada's decision in Kerr v. Baranow (2011 SCC 10). This remedy requires proving three elements: the defendant was enriched, the claimant suffered a corresponding deprivation, and there is no juristic reason for the enrichment.
Where parties were engaged in a joint family venture, courts may award a share of accumulated wealth proportionate to the claimant's contributions rather than merely compensating for services rendered. The Kerr v. Baranow framework examines factors including mutual effort toward common goals, economic integration, actual intent to share wealth, and whether the family was the priority. Successful claims can result in constructive trust orders granting ownership interests in specific property or monetary awards based on the value of contributions.
Spousal Support Entitlement
Common law partners who meet the two-year cohabitation threshold are entitled to claim spousal support under Part III of the Family Law Act on the same basis as married spouses. Courts apply the Spousal Support Advisory Guidelines (SSAG) to calculate both amount and duration of support, producing low, mid, and high ranges. The without-child-support formula calculates 1.5% to 2.0% of the gross income difference between spouses for each year of cohabitation.
When dependent children exist, the with-child formula uses Individual Net Disposable Income (INDI), targeting 40% to 46% of combined INDI for the lower-income spouse. INDI represents each spouse's income after child support obligations and taxes are deducted. Support duration increases with relationship length. The Rule of 65 triggers indefinite (not necessarily permanent) support when the recipient's age at separation plus years of cohabitation equals 65 or more. Relationships exceeding 20 years also typically result in indefinite duration orders.
Tax Treatment of Support
Periodic spousal support payments remain fully tax-deductible for the payor and taxable income for the recipient under the Income Tax Act. To qualify for this tax treatment, payments must be made under a court order or written separation agreement and paid periodically. Lump sum payments do not qualify for deduction or inclusion. This tax treatment can significantly affect the net cost and benefit of support arrangements.
Parenting Arrangements and Child Support
Parenting arrangements for children of common law partners are governed by the NWT Children's Law Act (SNWT 1997, c. 14) rather than the federal Divorce Act, which applies only to married couples. However, the substantive principles are nearly identical following the 2021 amendments to the Divorce Act, which modernized terminology and added family violence considerations.
Both statutes now use "parenting time" instead of custody or access, and "decision-making responsibility" instead of legal custody. The paramount consideration in all parenting decisions is the best interests of the child under Divorce Act, s. 16.1 and the Children's Law Act. Courts must consider the child's needs, the nature and strength of relationships with each parent, each parent's willingness to support the child's relationship with the other, the child's views and preferences, and any history of family violence.
Child Support Obligations
Child support is calculated using the Federal Child Support Guidelines tables specific to Northwest Territories, which reflect the territory's unique tax rates. Base monthly support amounts are determined by looking up the paying parent's annual income against the number of children. For incomes up to $150,000, the tables provide specific amounts in $1,000 income increments. Above $150,000, courts have discretion under Section 4 of the Guidelines.
Beyond table amounts, parents share extraordinary expenses proportionate to their incomes under Section 7 of the Guidelines. These special expenses include childcare costs necessary for employment, health insurance premiums, educational expenses, extracurricular activities, and post-secondary education costs. The Northwest Territories Maintenance Enforcement Program is responsible for enforcing and collecting both child support and spousal support orders throughout the territory.
Steps to Formalize Your Common Law Separation
While no court filing is required to end a common law relationship, formalizing the separation through either a written agreement or court order protects both parties and provides clarity for future disputes.
Step 1: Document the Separation Date
The separation date determines property valuation, limitation periods, and support duration calculations. Document this date in writing, ideally through an email or letter exchanged between the parties. The separation date is when the parties begin living separate and apart with no reasonable prospect of reconciliation. Parties can be separated while still living under the same roof if they have effectively ended their conjugal relationship.
Step 2: Gather Financial Documentation
Before negotiating property division or support, both partners must provide complete financial disclosure. This includes bank statements, tax returns, property valuations, pension statements, business records, and debt documentation. The Family Law Act requires sworn Financial Statements in any court proceeding. Incomplete disclosure can result in agreements being set aside years later.
Step 3: Explore Free Mediation
The NWT Family Law Mediation Program provides up to 9 hours of free mediation for separating partners. Services are available throughout the territory in person, by telephone, or online in English and French, with interpretation for Indigenous languages available. Mediation can address parenting arrangements, decision-making responsibility, child support, spousal support, and property division. Contact the program at 1-866-217-8923 or flmp@gov.nt.ca.
Step 4: Negotiate a Separation Agreement
A comprehensive separation agreement should address property division, spousal support (including amount, duration, and variation terms), parenting arrangements, child support, debt allocation, and release of claims. Under sections 51-54 of the Family Law Act, cohabitation agreements (before separation) and separation agreements (after separation) are binding domestic contracts if properly executed. Each party should obtain independent legal advice before signing.
Step 5: Court Application if Necessary
If agreement cannot be reached, either partner may apply to the Supreme Court of the Northwest Territories for property division, spousal support, or enforcement orders, or to the Territorial Court for parenting and child support orders. The Supreme Court Registry in Yellowknife is located at Third Floor, 4903-49 Street, open Monday to Friday 9:30 AM to 4:00 PM. Contact the registry at 1-867-767-9288. Filing fees range from approximately $200-$600 CAD as of May 2026 (verify with the registry before filing).
Limitation Periods for Property Claims
Unlike divorce proceedings which have no limitation period, common law property claims under the Family Law Act must generally be commenced within two years of separation. Missing this deadline can permanently bar property division claims even for long-term relationships. Spousal support and parenting applications may have different or no limitation periods depending on circumstances. Consult a lawyer promptly after separation to preserve all available claims.
Legal Aid and Low-Cost Resources
The Legal Aid Commission of the Northwest Territories (1-844-835-8050) provides representation for family law matters including separation issues when associated concerns about child support, spousal support, parenting arrangements, or child welfare are involved. Eligibility is generally based on income. Applicants are typically approved if their income is mostly from social assistance or if paying legal fees would reduce their income to social assistance levels.
The Parenting After Separation workshop offered free by the NWT Department of Justice is required by Supreme Court Practice Direction before proceeding with parenting applications. The workshop helps parents understand how separation affects children and encourages cooperative co-parenting. Additional resources include the NWT Family Law Guide published by the Department of Justice and the CanLII database for case law research.
Frequently Asked Questions
How long do you have to live together to be common law in NWT?
You become common law spouses after two years of continuous cohabitation in a conjugal relationship under the NWT Family Law Act, s. 1. However, if you have a child together, you gain spousal status immediately regardless of how long you have lived together. The two-year period must be continuous, though brief temporary separations may not necessarily restart the clock.
Do common law partners have the same property rights as married couples in NWT?
Yes. After meeting the two-year cohabitation threshold (or having a child together), common law partners have identical property division rights to married couples under the Family Law Act. The NWT is one of only four Canadian jurisdictions providing this full equality. Both family home protections and equitable distribution rules apply equally to qualifying common law relationships.
Can I get spousal support after a common law separation in Northwest Territories?
Yes. Common law partners who meet the qualifying period are entitled to claim spousal support under Part III of the Family Law Act. Courts apply the Spousal Support Advisory Guidelines to calculate amounts ranging from 1.5% to 2.0% of the income difference per year of cohabitation. The with-child formula targets 40% to 46% of combined INDI for the lower-income spouse when children are involved.
Do I need to go to court to end my common law relationship?
No. Unlike married couples who must obtain a divorce decree, common law partners are separated the moment one partner permanently moves out. No court filing is required to end the relationship itself. However, you should formalize property division, support, and parenting arrangements through either a written separation agreement or court order to avoid future disputes and enforce your rights.
What is the limitation period for common law property claims in NWT?
Property division claims under the Family Law Act must generally be commenced within two years of separation. Missing this deadline can permanently bar your property claims regardless of relationship length or contributions made. Spousal support claims may have different limitation periods. Consult a lawyer promptly after separation to preserve all available legal rights.
How is the family home divided between common law partners?
Both partners have rights in the family home under sections 44-50 of the Family Law Act regardless of whose name appears on title. One partner cannot sell or mortgage the home without the other's consent. Upon separation, the home is subject to equitable division along with other family property. Courts consider factors including contributions to acquisition, children's needs, and each partner's housing requirements.
What if we lived together for less than two years with no children?
Partners who do not meet the statutory threshold may pursue property claims through unjust enrichment under the common law framework established in Kerr v. Baranow (2011 SCC 10). You must prove the other partner was enriched, you suffered a corresponding deprivation, and there is no legal reason for the enrichment. Successful claims can result in monetary awards or constructive trust orders granting property interests.
How is child support calculated for common law partners in NWT?
Child support is calculated identically for married and common law parents using the Federal Child Support Guidelines tables for Northwest Territories. Base amounts are determined by the paying parent's annual income and number of children. For one child at $60,000 annual income, table support is approximately $550-$600/month. Section 7 extraordinary expenses (childcare, activities, education) are shared proportionate to incomes.
Can we use mediation instead of going to court?
Yes. The NWT Family Law Mediation Program provides up to 9 hours of free mediation for separating partners. Services are available in English and French with Indigenous language interpretation. Mediation can resolve parenting arrangements, support, and property division issues. Contact 1-866-217-8923 or flmp@gov.nt.ca. Court applications remain available if mediation does not produce agreement.
Do I qualify for legal aid for my common law separation?
The Legal Aid Commission of the Northwest Territories covers family law matters when associated issues of child support, spousal support, parenting arrangements, or child welfare are involved. Eligibility is income-based. Applicants receiving social assistance generally qualify. Those whose income would fall to social assistance levels after paying legal fees may also qualify. Contact Legal Aid at 1-844-835-8050 to apply.
This guide was prepared by Antonio G. Jimenez, Esq. (Florida Bar No. 21022) covering Northwest Territories family law for Divorce.law. Information current as of May 2026. Laws change frequently. This guide provides general information only and does not constitute legal advice for any specific situation. Consult a licensed NWT family law lawyer for advice on your particular circumstances. Court filing fees should be verified with your local court registry before filing.