All about common-law relationships in Canada
In Canada, people are showing a penchant for informal relationships. Common-law relationships are on the rise. The latest census shows a constant increase in the number of common-law unions in Canada. Faced with this craze, this civil status has been legalized under certain conditions. However, the prerogatives of this status are far from being equal to those of marriage. So, is it worthwhile to become a common-law partner ? What are the privileges and limitations of this arrangement?
What is a de facto union?
A de facto union describes a factual situation involving two unmarried individuals who cohabit and appear in society as a couple.
Definition of common-law relationship
Common-law relationship is also known as a common-law relationship. Sometimes referred to as cohabitation, it refers to a situation. It describes two people of the same or opposite sex living together. They live under the same roof from a few months to several years or at a distance for a certain period of time. The life together often results in the birth of a child. Their living arrangement gives the impression of a marriage. Nevertheless, their relationship remains unofficial.
From a legal point of view, people who have lived together for at least one year are considered to be common-law partners. The law requires a continuous year of cohabitation and not intermittent cohabitation for a total of one year. Of course, temporary separation is permitted.
The spouses have proof of their living together: a lease in both partners’ names, joint bank accounts, shared utility bills, etc
When do you become a common-law partner?
It is commonly believed that people who live in the same residence for a certain period of time are automatically married. However, there are a few legal criteria that define the state of common-law relationship between two people. They have lived together for a long period of time, approximately 1 to 3 years. They present themselves in public as a couple. A biological or adopted child is born from their union.
A person can always become the common-law partner of another person, even if they are still legally married or joined to another person (by a marriage contract).
Depending on your situation, check with resources to determine your legal status.
The advantages of a de facto union
The status of de facto spouse does not create any liability for debts against the other spouse. You are under no obligation to repay your partner’s debts, regardless of your relationship status.
Following a separation, each person leaves with his or her property. The decision does not trigger any division of property. However, community property must be distributed according to the share held by the former partners. The title deeds (invoices, purchase contracts…) will thus confirm the share of each owner. Otherwise, the joint property will be distributed equally.
Disadvantages of a de facto union
In the case of a de facto union, the break-up of the relationship does not give the right to compensatory allowance or to the settlement of the matrimonial regime. The partner cannot expect spousal support. However, the family patrimony will be divided between the ex-partners, namely: the family residence, the retirement pension, the vehicles and the furniture.
Children born in a common-law relationship have the same rights as children born in a marriage. The custodial parent can claim support for their offspring.
As a reminder, the wife can resort to the presumption of paternity to her husband (the attribution of paternity to his spouse regardless of biological confirmation of filiation). The legal presumption takes place at the birth of the child during the marriage or 300 days after the separation. This predisposition is non-existent in a de facto union. Nevertheless, the partner can establish filiation of the child.
The spouse who owns the family residence has the right to evict the partner at any time. In the event of death, the survivor cannot inherit the home.
What is the difference between marriage and de facto union?
According to the Civil Code, common-law partners and married couples do not have the same rights and responsibilities.
The points of similarity between de facto union and marriage.
When it comes to filing income tax returns, common-law partners are on the same page as married couples. They benefit from the same tax deductions for child care expenses, spousal support and alimony.
The systems share the same rights and obligations with respect to provincial and federal taxes. They converge on the same tax programs, such as :
- registered Retirement Savings Plans (RRSPs) ;
- tax-Free Savings Accounts (TFSAs); and
- quebec Pension Plan (QPP).
If the couple separates, the common-law spouse can apply to become a tenant in the home of his or her former owner partner.
Married or unmarried couples are entitled toadopt a child abroad or in the country. They also have private health insurance coverage. Common law spouses and spouses are entitled to benefits following an automobile accident, a work-related accident or the death of a spouse.
The main points of difference between marriage and common-law relationships
The civil status of de facto union excludes several advantages of marriage:
- protection of the family residence for the spouse ;
- compensation for work done on behalf of the partner during the de facto union;
- spousal support.
Common law status is a personal choice. The partners enter into the union with full knowledge of the facts.
How it is celebrated
Civil marriage and religious marriage are recognized. The acts call for the organization of official ceremonies. These unions take place in the presence of witnesses. An officiant, in this case: an officer of the town hall, a notary, a judge as well as any other person with governmental authorization have the power to celebrate civil marriage. The priest or rabbi performs the religious marriage.
Acommon-law marriage is between two unmarried people. No formal celebration is required. They share domestic, financial and family responsibilities. However, they have no legal rights or duties towards each other.
In order to have the same rights as married couples, common-law partners formalize their union by signing an official document: the marriage contract.
Inheritance
Inheritance is a different matter depending on the relationship of the couple. The common-law spouse is not entitled to any inheritance in the event of his or her partner’s death. Only the preferred beneficiaries mentioned in the deceased’s will or life insurance policy can inherit. In the absence of a will clause, the children of the deceased will automatically inherit all of the deceased’s property. If there are no descendants, the parents, sisters and brothers of the deceased will become his heirs.
The division of the family patrimony is based on the matrimonial regime. In a de facto union, the regime of partnership of acquests applies, if the couple breaks up. The system involves a division of property into private property (personal property of each spouse) and common property. While the private property remains private property, the common property is redistributed between the former partners.
Protective measures for common-law spouses
In a de facto union, preventive measures protect against the financial consequences of unforeseen events (separation or death).
Establishing a contract for living together
A preliminary discussion is necessary before establishing a cohabitation agreement. Its drafting and signature guarantee the agreement between the partners. The operations avoid possible discord and disputes, if the couple breaks up.
The cohabitation agreement explains the terms and conditions for the management of property within the household. It also covers the aspects of daily life that involve joint governance.
Include in the cohabitation contract protection of your family residence, compensatory allowance and alimony. These initiatives will save you from financial problems at the end of your relationship.
Also define the terms of the division of property, the ownership of property for the couple’s use, the debts related to the needs of the household and the contribution of each individual to the expenses.
Once the agreement has been drawn up, call on the services of a notary to authenticate it. His intervention will legalize the agreements.
Setting up a mandate of protection
No one is immune to the unexpected. Accidents on the road, in the workplace or even in the home can strike at any time and render the victim unfit. This is when the mandate of protection takes on its full importance.
All adults, whether they are common-law partners or spouses, enjoy a specific prerogative in Quebec: the establishment of a mandate of protection. Also known as a mandate in anticipation of incapacity, the mandate of protection designates a person of your entourage (relative, friend, etc.) who will be responsible for the administration of your property and the maintenance of your person. The mandatary will take over in the event of a court declaration of your incapacity (physical or moral). The document specifies the directives that are essential for the maintenance of your person and your finances. It authorizes your partner to act on your behalf, provided that he or she has been designated as the mandatary.
If you do not have a mandate for protection, your family and friends can apply to the court for aprotection plan . The initiative involves a conciliation meeting leading to the opening of a protection regime.
Writing a will or taking out life insurance
Estate planning anticipates unforeseen events and reduces their budgetary impact. In your interest, it is essential to draw up your partner’s will. It will allow you to define in advance the heirs to his property as well as the beneficiaries’ share.
Taking out alife insurance policy is also essential. The coverage will allow you to receive even a small financial boost in the event of your partner’s death. The amount paid out will compensate for funeral expenses, make up for the loss of income of the deceased spouse or cover the tax burden of his or her assets.
