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Living common law

For more information on common law relationships, download the publication: "And they lived happily ever after: rights and responsibilities of common law partners". It is available on this site in both English (2d edition) and French - "Et ils vécurent heureux jusquà la fin des temps...droits et obligations des conjoints de fait" (1st edition only).

THE LAW HAS CHANGED!
There has been a big change to the law about dividing property for common law couples.  It deals with how a claim for money or property works, based on contributions to a common law relationship.    This is called an ‘unjust enrichment’ claim.  The change is not talked about in the publication “And they lived happily ever after”.   

It is very important to get legal advice about your situation if you are ending a common law relationship and dealing with how to divide your property.  A lawyer can tell you how the changes to the law may affect you.

Q - What is a common law relationship?

A - A common law relationship is one in which two people live together but are not legally married to each other. For the relationship to be common law the couple must live together in a 'marriage-like' relationship, for example, by sharing finances, and publicly referring to themselves as partners or spouses.

Q - How long must a couple live together before they are common law partners?

A - There is no set time period. Provincial laws give you some rights for support after you have lived together for two years. Employers and insurance companies may have their own policies for defining a common law partner for the purpose of deciding who qualifies for company or medical benefits.  The publication " And they lived happily ever after: rights and responsibilities of common law partners" has a table at the back that gives the amount of time a couple must live together to qualify as common law partners under various laws.

Q - Can common law couples register their relationship with the provincial government?

A - Yes. As of June 4, 2001, common law couples (same and opposite-sex) can register as domestic partners with Vital Statistics at Service Nova Scotia and Municipal Relations.
Once a domestic partnership is registered, the partners will have many of the same rights, benefits and obligations as a married couple, such as pension benefits and the division of assets at separation or death. For specific information on these rights and benefits, you should talk to a lawyer.

Q - Where can common law couples register their domestic partnership?

A - Domestic partnerships are registered at Vital Statistics, which is part of Service Nova Scotia and Municipal Relations.

For information contact Vital Statistics at 902.424.4381 or 1.877.848.2578 (toll free) or through their web site at www.gov.ns.ca/snsmr/vstat.

Q - Can common law couples put the terms of their relationship in a written agreement?

A - Yes, you can have a cohabitation agreement whether or not you register your domestic partnership. A cohabitation agreement is a document that says what has been agreed upon by the common law partners. It can cover whether one partner will take the other’s name, their financial arrangements, who will take most responsibility for caring for any children, and how property and debts will be divided if the relationship ends.

You and your common law partner can enter into a cohabitation agreement before you start living together or at any time during the relationship. You should both get separate legal advice before you sign any agreement.

Q- How does a common law relationship end?

A - The relationship ends when you stop living together. You do not have to 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 custody and access for the children, how the property will be divided and how you will deal with debts. You may already have set out the terms of the separation 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.

If you have a Registered Domestic Partnership, you must formally end the partnership by:

  • Filing a joint “Statement of Termination” with the office of Vital Statistics; or
  • Registering a signed written separation agreement with the Family Court or with the Supreme Court (Family Division) if you are in Halifax Regional Municipality or Cape Breton and then file proof of the registration with the office of Vital statistics; or
  • Filing, with the office of Vital Statistics, a sworn written statement by one or both spouses that you have be separated for at least a year; or
  • One partner marrying someone else. A copy of the marriage certificate must be filed with the office of Vital Statistics.

Q - Who has custody of and access to the children at the end of a common law relationship?

A - Both parents have joint custody of their children if they have lived together. If they separate, they can agree on custody and access to the children, or it may be set out in a cohabitation agreement. If they cannot agree, either can apply to the Supreme Court (Family Division) in Halifax Regional Municipality and Cape Breton or the Family Court in other parts of the province for court orders on custody and/or access. For more information please go to the section on Custody and Access.

Q - Can I get financial support from my common law spouse?

A - Spousal support — In Nova Scotia, common law partners who have lived together for at least two years may have responsibilities to provide financial support for each other. If you have a Registered Domestic Partnership there is no two year waiting period.

If the relationship ends, either common law partner can apply to Family Court or Supreme Court (Family Division) in Halifax Regional Municipality and Cape Breton for an order for support. If you are applying for support for yourself or your children, you should talk with a lawyer. For more information go to the section on spousal support.

Child support — All parents (birth, adoptive, or step-parents) are required to support their children even when the parents are not married to each other. For more information go to the section on Child Support.

For more information, visit the LISNS' Child Support page.

Q - Am I responsible for my spouse’s debts?

A - If you co-sign for loans with your spouse, you are each responsible for repaying the loan. You are not generally responsible for your spouse’s debts unless you co-sign for them. However, if the debt is for something that is used for the family such as fuel oil or food, you may be responsible along with your spouse.

Q - If my common law partner dies who gets his or her property?

A - Your common law partner may provide for you in his or her will. If there is no will and you have a Registered Domestic Partnership, you will have the same rights as a married spouse. If you do not have a Registered Domestic Partnership, you may have a claim against your spouse’s estate depending on the circumstances. If there are dependent children from the relationship, they may also have a claim against the estate.

If you own property jointly with your common law spouse, you may have a claim against the property even if there is no will.

If you think that you or your children have a claim against your spouse’s estate, you should talk with a lawyer as soon as possible.

If you want your common law spouse to inherit all or part of your property, you should make a will.

Note: Marriage usually invalidates a will made before the marriage.  Further, parts of your will may be revoked if you divorce. Divorce revokes parts of a will that involve a gift to or provide a benefit to a former spouse or appoint him or her as executor.  There are exceptions. For example, the will, a separation agreement or marriage contract may specifically say that the terms are not affected by a divorce.   If you are divorced or separated and you want to provide for your common law spouse you should review your current will with a lawyer, as you may need to make a new will. You may also want to review your insurance policies.

Click here for more information about making a will.

Q - Where can I get more information?

A – For more information, download "And they lived happily ever after: rights and responsibilities of common law partners" or "Et ils vécurent heureux jusquà la fin des temps...droits et obligations des conjoints de fait"  and read other family law topics.

THE LAW HAS CHANGED!
There has been a big change to the law about dividing property for common law couples.  It deals with how a claim for money or property works, based on contributions to a common law relationship.    This is called an ‘unjust enrichment’ claim.  The change is not talked about in the publication “And they lived happily ever after”.   

It is very important to get legal advice about your situation if you are ending a common law relationship and dealing with how to divide your property.  A lawyer can tell you how the changes to the law may affect you.

December 2011

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