An interesting question about immigration (and more) – let's break it down!
Entering a common-law relationship before the divorce is finalized.
Does Canadian law recognize a common-law relationship if one partner is still legally married to someone else?
Under the Criminal Code, polygamy - being married to more than one person at the same time is illegal in Canada and punishable by up to five years in prison.
Under the Family Code, a marriage is not considered legally dissolved until the divorce is finalized. However, in practice, it is quite common for one or both partners to be in a "common-law" relationship with a new partner before their divorce is official.
In this case, there are two ways a common-law relationship can be legally recognized under Canadian family law:
1. When two people live together in a marriage-like relationship for a certain period of time (typically at least one year, but requirements vary by province), or
2. When two people live together in a committed relationship for any period of time and have a child together.
In some provinces, such as Ontario, a legally married person can also have a recognized common-law spouse before officially divorcing their first spouse, as long as they live separately from their legal spouse.
The most important requirement is that the individual clearly demonstrates their intention to end the previous relationship. In such cases, it may seem like a person has two spouses, but legally, that is not the case.
From an immigration perspective, this situation can be handled, but you need to know what additional documents to provide and ensure they are properly submitted.
Key detail: According to provincial family law, you are always responsible for supporting your biological children, whether you live with them or not. If you are in a common-law relationship but still legally married to someone else, you still have obligations for spousal and child support from your first marriage. Courts typically do not reduce your financial responsibilities for your first family just because now you have a new one.
As a result, at some point, you may be financially and morally responsible for two families.
IMPORTANT: If your common-law partner has children from a previous relationship who have lived with you for at least a year, you may be considered a parent for child support purposes. This means that if the relationship ends, you may be required to pay child support for children who are NOT biologically yours and whom you have NOT adopted.
A court can establish child support obligations based on the time you lived with the children and your parental role during that period.
Oleksandra Melnykova, Immigration and Refugee Consultant in Canada.
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