A common law relationship is where two people, who are not married, live together in a 'marriage-like' relationship. This means that they not only share a home, but they refer to themselves in public as spouses or partners, and share things like bills and other finances. A common law couple may or may not have children together.
The Parenting and Support Act (PSA) was introduced on May 26, 2017. This Act provides one definition for ‘spouse’, which includes relationships typically described as common law relationships. The definition of spouse under the PSA includes parties who are not married to each other and:
have lived in a marriage-like relationship continuously for at least two years, or
have lived in a marriage-like relationship and have a child together.
Whether or not you are considered to be in a common law relationship will depend on the laws that apply to your situation. Every law has its own definition for what qualifies as a common law relationship.
For example, the Canada Pension Plan says that to be a ‘common law partner’ you had to have been living with your partner for one year, while the Parenting and Support Act says you are a ‘spouse’ after you have lived together in a conjugal relationship for two years, or have lived together and have a child together. A conjugal relationship is a ‘marriage-like’ relationship.
You cannot file an application to become ‘common law,’ like you would if you wanted to be considered a ‘domestic partner.’ You do not have to go through a formal court process when you separate from your common law partner. You cannot get divorced. If you want to have something in writing when you move in with your partner, you can make a ‘cohabitation agreement.’ You can also make a ‘separation agreement’ if you separate from your partner.
A cohabitation agreement is a written legal contract between two people who are living together or are about to live together. It is similar to a pre-nuptial (‘pre-nup’) agreement for a married couple. It will usually contain sections - called ‘clauses’ - about your financial arrangements, and how parenting arrangements, support issues and property will be dealt with if you end your relationship. You are not required to have a cohabitation agreement, though some couples get one for peace of mind. A cohabitation agreement can be a useful tool if you separate from your partner. A cohabitation agreement is usually written by a lawyer, to make sure that it is written properly and contains all of the wording that you may need in your situation. A lawyer can tell you what should be included, and how parts of a cohabitation agreement may be enforced if you separate from your partner. If you get a cohabitation agreement, both you and your common law partner should get independent legal advice to make sure the agreement is right for you. Independent legal advice means that each of you would speak to a different lawyer for advice, as one lawyer should not give both of you advice.
No. Common law couples do not have all of the same rights and obligations as married couples under the law relating to property, debts and pensions. However, their rights and obligations around parenting and supporting children are similar to those of married couples.
When a couple is married, and they divide their property when they separate, there is a general rule of equal sharing of the property they used as a married couple. This means that when they separate or divorce, the spouses will split things 50/50 - like their property, pensions, assets, and debts. This general rule does not exist for common law couples when they separate.
Legally speaking, the break-up of common law relationships is like the break-up of a business. You need to look at what each of you:
provided to buy the assets,
contributed to keep up or improve the assets,
may have done to allow the other person to do the same.
In real life, however, it is not always so simple to sort out who owes what to whom. If you and your former partner cannot agree on how to split up your property when you separate, you may apply to the court for a court order to divide the property. In every case, former common law partners should have legal advice involving common law property division.
A common law relationship ends when one or both of the parties tell the other that the relationship is over. You do not go through a divorce to end a common law relationship. Although the relationship ends, some rights and responsibilities may continue.
At the end of the relationship, you and your common law partner may be able to agree on parenting arrangements for the children, support payments, how the property will be divided, and how you will deal with debts. You may already have these issues set out in a cohabitation agreement. If you do not have a cohabitation agreement and you cannot agree on the terms of the separation, you can go to court and have a judge decide. You can also try dispute resolution methods like those listed here.
A registered domestic partnership is a formal legal relationship that is registered with the government. This type of relationship allows a couple to have some of the rights and obligations that married couples have, without being married. This may include things like pension benefits or the ability to divide property or other assets at separation or death. This type of relationship generally gives the couple more rights than a common law relationship, but does not have all of the rights of a marriage.
Couples who want to have a registered domestic partnership must register with Vital Statistics at Service Nova Scotia and Municipal Relations. Each partner must be over 19, and must not already be married or in another registered domestic partnership.
A registered domestic partnership ends when one of the following events occur:
the parties file an executed statement of termination form with Vital Statistics;
the parties live separate and apart for more than one year and one or both parties has the intention that the relationship not continue;
one of the domestic partners marries another person;
the parties have a separation agreement registered with the court;
For more information, visit the Vital Statistics website.
You do not have to register a common law relationship with the government like you do with a registered domestic partnership.
Also, when you separate from your common law partner, it may be difficult for you to determine how to split up your debts, property, or other assets, because the law that deals with common law property is not clear-cut. When you are in a registered domestic partnership, you are able to use some of the laws that a married couple can use, like the Matrimonial Property Act, if you have to apply to the court for help in dividing your property or debts.
Yes. If you have children, you have the same rights and obligations toward your children whether you were married, in a common law relationship or registered domestic partnership, or whether you never lived with the other parent at all. What the rights and obligations are for your specific situation will always depend on the circumstances.