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.
How long must a couple live together before they are common law spouses?
There is no set time period.
It is complicated, as it really depends on the issue you are dealing with. For example, the Nova Scotia Parenting and Support Act gives you some rights for spousal support after you have lived together for two years or have a child together. Employers and insurance companies may have their own policies for defining a common law spouse for the purpose of deciding who qualifies for company or medical benefits. A number of other laws like the federal income tax rules (Canada Revenue Agency), immigration law (Immigration Canada) and Canada Pension consider a cohabiting couple to be common law if they have lived together in a conjugal (marriage-like) relationship for at least 1 year. The rules about property and pension division for separating common law couples are particularly complicated, so it is best to see a lawyer.
Can common law couples register their relationship with the provincial government?
Yes. Couples can choose to register a domestic partnership with Vital Statistics at Service Nova Scotia. For information contact Vital Statistics at 902-424-4381 or 1-877-848-2578 (toll free) or through their website at beta.novascotia.ca/register-your-domestic-partnership. 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.
Can common law couples put the terms of their relationship in a written agreement?
Yes, you can have a cohabitation agreement. A cohabitation agreement is a document that says what has been agreed on by the common law partners. It can cover things like whether one partner will take the other’s name, their financial arrangements, and how property and debts will be divided if the relationship ends.
Agreements make sure both partners are thinking the same way about all their major financial matters. You cannot assume that you both feel the same way, nor can you assume that your partner will keep verbal promises made during the relationship if it ends.
All common law partners should think about having a cohabitation agreement, but it is especially important to think about a cohabitation agreement:
- when one partner has significantly more assets or debts than the other,
- if one partner owns a home but the other does not,
- if one partner has a special type of property they want to protect, such as a family cottage,
- if the partners have (or will have) very different incomes,
- if one partner plans to stay home full or part time with children,
- if there are children from an earlier relationship.
Unlike married couples or registered domestic partners, common law partners do not have an automatic right to share property when they separate. So, you might want to change this by agreeing to share property in a cohabitation agreement. For example, you might want to share property as if you were married even if you don't actually want to get married.
You and your common law partner can enter into a cohabitation agreement before you start living together or at any time during the relationship.
A lawyer can help write a cohabitation agreement, or you and your partner can write it yourselves. The agreement should be in writing, dated, and signed by both partners and by an adult witness (age 19 or over) who watched the partners sign the agreement.
It is best if you both get separate legal advice before you sign any agreement. This is sometimes called independent legal advice. The advice is independent because each lawyer is working for only one of you.
It is important to get independent legal advice because:
- it helps you understand what you’re agreeing to
- your agreement is less likely to be challenged in court later
- a court is more likely to order you and your partner to do what you agreed to in your agreement.
Can I change a cohabitation agreement?
You can change your cohabitation agreement if your partner agrees to the changes. You should both get independent legal advice first if possible.
The new agreement should be in writing, dated, and signed by both partners and an adult witness (19 or older) who watched the partners sign the agreement. If your partner does not agree to change the agreement, then you will likely have to follow the original agreement.
A court may change or not apply a cohabitation agreement if it is very unfair to one partner and that partner did not get independent legal advice before signing it. A court may also change or not apply an agreement if one partner was dishonest about their assets, debts, income, or other circumstances. You should speak to a lawyer if you feel your cohabitation agreement is unfair.
It is especially important for common law partners to have wills
If a person dies in Nova Scotia without a valid will, their property will go to family members under a law called the Intestate Succession Act. This law recognizes married spouses and registered domestic partners, but not common law partners.
To make sure that property goes to a common law partner, both partners must have a will. Common law partners can also make sure their partner inherits by creating a trust, owning property jointly with their partner, and naming their partner as beneficiary on RRSPs, life insurance, and other benefits. These are things partners should do in addition to each having a will, not instead of having a will.
Lawyers, accountants, and estate planners can help with estate planning.
If my common law partner dies who gets their property?
Your common law partner may provide for you in their will.
If there is no will and you have a Registered Domestic Partnership, you will have the same rights as a married spouse under Nova Scotia provincial laws. If you do not have a Registered Domestic Partnership, you may have a claim against your common law 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 may 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 (see 'It is especially important for common law partners to have wills').
Go here for more information about making a will and estate planning.
How does a common law relationship end?
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 parenting arrangements 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 Supreme Court (Family Division)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 (affidavit) by one or both spouses that you have been 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.
Who has decision-making responsbility and parenting time with the children at the end of a common law relationship?
Both parents have joint responsiblity for their children. If they separate, they may agree on parenting arrangements and put the agreement in a written separation agreement if they wish. If they cannot agree, either can apply to the Supreme Court (Family Division) for a court order dealing with issues like parenting arrangements and financial support. For more information go to nsfamilylaw.ca
Can I get financial support from my common law spouse?
Spousal support — In Nova Scotia, common law partners who have lived together for at least two years or have a child together 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 spouse can apply to the Supreme Court (Family Division) for a spousal support order. If you are applying for support for yourself or your children, you should talk with a lawyer. For more information go to nsfamilylaw.ca on spousal support.
Child support — All parents (birth, adoptive, or step-parents) are legally required to support their children even when the parents are not married to each other or never lived together. For more information go to the section on Child Support and see the information on nsfamilylaw.ca about child support.
Am I responsible for my spouse’s debts?
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 benefit of the family such as fuel oil or food, you may be responsible along with your spouse.
How is property divided between common law partners who separate?
Nova Scotia's Matrimonial Property Act, which is the law that says 50/50 for assets between married spouses, does not apply to common law couples unless they have a registered domestic partnership. Most common law couples do not have a registered domestic partnership.
What mainly applies to common law couples on property issues is the 'common law', which in this context is law from past court decisions about things like 'unjust enrichment' and 'joint family ventures'. These are complicated legal words that we explain a bit below, but you should speak with a lawyer about your particular situation.
Generally if a common law relationship ends the legal starting point for property division is that each person takes whatever they brought into the relationship, whatever they acquired during the relationship, whatever is in their name. Any jointly owned property would generally be shared - because it is jointly owned, not because of the common law relationship.
The separating couple may agree that each person keeps their own stuff, or they may agree to split things up equally or in some other way. They can get help to come to an agreement - through lawyers for example. If they do reach an agreement it is a good idea (but not required) to put the terms of the deal in a separation agreement, and to get independent legal advice (2 separate lawyers) before the agreement is signed, to make sure the agreement is fair to both common law partners. For division of private workplace pensions there generally must be a written separation agreement or court order addressing the pension(s) in order for the division to happen.
If they don't agree though about how to divide their assets and debts, then the common law spouse who does not have their name on an asset or assets might be able to make a claim for compensation if they can show they contributed to the increased value of the asset(s)/property and that the other person benefited from that increased value. That's called an "unjust enrichment" claim. The idea is that it would be unjust, or unfair, for one person to be enriched by the contributions of the other, and that therefore the person who contributed to the increase in the value of the asset(s), but who is not the owner on paper, should get some compensation, assuming they weren't already compensated in some way, such as by living in a residence without having to pay mortgage, insurance, taxes. "Contributions" means things like money (eg. downpayments, paying a mortgage, insurance, taxes, payments on a loan) and/or unpaid or underpaid work contributions (eg. maintenance and general upkeep, improvements to an asset or assets).
As part of a claim for common law property division there is most often another legal argument made that the couple had a "joint family venture". It is complicated, but basically it boils down to this: because of what they did, said, or put in writing during the relationship it is clear the plan was to share whatever wealth or assets accumulated during the relationship, regardless of whose name is on what, and that therefore the accumulated assets should be shared.
As you can see, property division for common law couples is complicated. It is best to talk with a lawyer to get advice about your specific situation.
For more information
- ww.nsfamilylaw.ca- family law information on many topics, including common law relationships, divorce, separation, parenting arrangements, spousal support and child support
- Contact the Legal Information Society of Nova Scotia to connect with a legal information counsellor and get free legal information
- Contact Nova Scotia Legal Aid for family law legal information and legal advice
- Contact a lawyer in private practice (lawyer you would pay) who does family law
- Free and low-cost legal help in Nova Scotia.
Last reviewed: December 2022