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The Nova Scotia Government is inviting Nova Scotians to share their views on how family property is divided at the end of a relationship. Go here to take the public consultation survey on family property division.
What is a common law relationship?
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. 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 Canada, and Canada Pension consider a cohabiting couple to be common law if they have lived together in a conjugal relationship for at least 1 year. The rules about property 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 novascotia.ca/sns/access/vitalstats.asp. 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 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.
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 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.
Who has custody of and parenting time with the children at the end of a common law relationship?
Both parents have joint custody of their children if they have lived together. If they separate, they can agree on custody and parenting time with the children and detail the agreement in a separation agreementt. 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 parenting time. For more information please 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 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 Family Court or Supreme Court (Family Division) in Halifax Regional Municipality and Cape Breton for a spousal supportorder. 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 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.
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 family such as fuel oil or food, you may be responsible along with your spouse.
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. 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.
Click here for more information about making a will and why it is so important to have one in a common law relationship in particular.
For more information
For more information about common law relationships go to nsfamilylaw.ca
For information about common law couples and property division, go to https://www.nsfamilylaw.ca/separation-divorce/common-law
February 6, 2020 CBC Maritime Noon: Listen to one of the Legal Information Society of Nova Scotia's Legal Information Line Counsellors talk about various laws relating to common law relationships, how family property is divided if the relationship ends, and making it clear that being in a common law relationship is definitely not the same as being married or in a registered domestic partnership!