Is A ‘Common Law’ Spouse Entitled To A Division Of Property In New Brunswick?

Understanding Common Law Relationships in New Brunswick

Defining a common law relationship under NB law

In the Family Services Act, Chapter F-2.2, section 1(b), “cohabit” means to live together in a family relationship;(cohabiter) and “common-law partner” means a person who cohabits in a conjugal relationship with another person if the persons are not married to each other (conjoint de fait);

If a common-law couple breaks up, the person who has paid for the item or whose name is on the deed may be the only one entitled to it. The rights to an equal division of marital property given to married couples under the Marital Property Act are not given to common-law couples.

The following FAQ’s were taken from the Public Legal Education and Information Service of New Brunswick . The link to the PLEIS (Family Law) website is set out below.

https://www.legal-info-legale.nb.ca/en/family_law

FAQ’s

How long must we live together before we are recognized as a common-law couple?

The amount of time you must live together before you are entitled to particular rights can vary. Some provincial laws recognize a common-law relationship after one year of living together. In other situations, you must live together for two years or, as in the Province of Ontario, even three years. Federal laws, employers and insurance plans may set out different criteria for recognizing common-law relationships. You should look at the different laws and policies to determine how they define a common-law relationship and how that definition applies to the issue under consideration.

What about other people who choose to live together. Do they have legal rights and responsibilities to support one another?

The Family Services Act was amended in New Brunswick to extend support obligations beyond married and common-law couples. Support obligations may now arise when two persons, not being married to each other, have lived together continuously in a family relationship for three years and one person was substantially dependent on the other for support.

COHABITATION AGREEMENTS

If I am in a common-law relationship, how can I protect myself legally?

While you are living together, the best way to protect your interests is to enter into a domestic contract with your partner called a cohabitation agreement. This is a written agreement between partners that sets out their rights and responsibilities towards each other. The agreement cannot include who will have custody of or access to the children of the relationship. However, it can deal with issues such as:

• who owns the property
• how property will be divided if you separate
• support obligations

To be legally binding, the agreement must be in writing, signed by both parties, and witnessed. You should each talk to a different lawyer. Your lawyer will explain how your agreement will affect you rights and responsibilities. For more information, see the Family Law Fact Sheet on “Coming to an Agreement” .

Why should we have a cohabitation agreement?

If you have lived together for any length of time, it may be difficult to know who owns what, especially if you both contributed. To protect your property rights, it is wise to have a cohabitation agreement with your partner that clearly sets out the ownership and division of property.

BREAKING UP

How do we end a common-law relationship?

To end a relationship, a common-law couple stops living together. However, legal obligations may have arisen during the relationship, particularly where the couple has children, or one partner has been dependent on the other. If the couple has a cohabitation agreement, they may already have decided what will happen upon separation.

Since the Marital Property Act does not apply to the property of common-law couples, they may want to enter into a Separation Agreement to set out their rights and obligations to each other. The separation agreement can include the same things as a cohabitation agreement (ownership and division of property, and support arrangements), but it can also include provisions for the custody and access of the children. It is important that each person talks to a different lawyer to make sure the document reflects what they have agreed to.

Here’s the link to the PLEIS website for more information:

PLEIS

The house is in my partner’s name. Am I entitled to any of it?

Recall that, above, it was noted that the rights to an equal division of marital property given to married couples under the Marital Property Act are not given to common-law couples. For common-law spouses, the person whose name is on the deed owns the property.

However, if it was purchased, developed or maintained with your contribution of labour, time or money, you may be entitled to some of it. The courts use a legal doctrine called ‘constructive trust’ or ‘resulting trust’ to help people in common-law relationships who are not eligible to apply under marital property laws. The amount that you can receive will depend on the extent of your contribution. The court may consider home-making and child care to be important contributions.

DEATH

If my partner dies, what rights do I have to his or her property?

Your partner may leave you something in his or her will. As long as the will is valid and your partner had the capacity to make a will, you will receive any property that has been left to you. If you want your common-law partner to inherit your property, you should specifically name him or her in your will.

What if my partner dies without a will?

If your partner dies without a will (called intestate), the Devolution of Estates Act determines who will get the property. Although the children born of your relationship will receive a share of the property, common-law partners are not recognized as having any property rights.

However, the Provision for Dependants Act offers some help if your partner dies without a will. You can ask the court to order your partner’s estate to provide support for his or her “dependants”. Even if your partner dies with a valid will, a dependant can apply under this Act if the will does not provide adequate support. You must make an application within four months after the death of your partner.

Duration of cohabitation required to be recognized as common law in New Brunswick

In New Brunswick, for some purposes such as pensions (more particularly described below), common law relationships are recognized after two years of cohabitation. This means that if a couple has lived together for two years or more, they are considered to be in a common law relationship and are entitled to certain legal rights and responsibilities.

It is important to note that the two-year requirement does not necessarily have to be continuous. For example, if a couple lived together for a year, separated for a period of time, and then moved back in together for another year, they would still be considered to be in a common law relationship.

It is important to keep in mind that each province in Canada has its own specific requirements for recognizing common law relationships, so it is important to be aware of the laws in your particular province.

In New Brunswick, common law couples are not entitled to the same rights and benefits as legally married couples, but they do have certain legal rights and responsibilities when it comes to issues such as property division, spousal support, and child custody. It is important for couples in common law relationships to be aware of their legal rights and responsibilities and to seek legal advice if necessary.

Jackson Estate v. Young

Jackson Estate v. Young, 2020 NSSC 5 (CanLII) is a thorough review of the law on the exclusion of common law spouses from inheriting under the Intestate Succession Act in Nova Scotia. Link to the judgement of The Honourable Justice Glen G. McDougall is set out below followed by an excerpt from the decision which sets out Justice McDougall’s conclusion. This decision illustrates the difficulties faced by a common law spouse asserting claims to property after the death of the other spouse. Jackson Estate may seem to be a harsh result for the surviving spouse. It stands as a reminder of the importance of estate planning and an awareness of the applicable statutory regime in New Brunswick.

Jackson Estate v. Young, 2020 NSSC 5 (CanLII)

Conclusion

” [208] In Nova Scotia, common law spouses are excluded from inheriting under the Intestate Succession Act. Although that exclusion infringes s. 15(1) of the Charter, the infringement is justified under s. 1.

[209] As of the time of this judgment, the Nova Scotia legislature has seen fit to impose rights and obligations under the Matrimonial Property Act and the Intestate Succession Act on only those spouses who have made a conscious and deliberate choice to accept those rights and obligations. Absent a finding that the exclusion of common law couples is unconstitutional, this court will not second guess the wisdom of the legislature’s decision.

[210] I find that Mr. Young has no legal or equitable interest in the property at 327 Craig Road. I dismiss his claims against the Estate and I order that he vacate the property within 90 days of the release of this decision. I also dismiss the Estate’s claim for occupation rent.”

Other Provinces

Nova Scotia’s Intestate Succession Act is consistent with Ontario’s Succession Law Reform Act. The SLRA adopts the definition of “spouse” from Ontario’s Family Law Act, which restricts “spouse” to married couples. A common law spouse cannot inherit a share of the deceased’s estate. However, that person can make a claim for relief as a dependant of the deceased by virtue of s. 57 of the SLRA. For the purpose of these claims, the definition of spouse is expanded to include a common law spouse.

In other provinces, the exclusion of common law spouses from property rights appears to be changing. Alberta and Manitoba have enacted legislation allowing common law partners to share in the deceased’s estate upon intestacy. And Nova Scotia is now redrafting its Matrimonial Property Act to give common law couples the right to divide assets upon separation.

Protective measures: cohabitation agreements and their role

Common law couples, also known as unmarried or de facto couples, do not have the same legal rights and protections as married couples when it comes to property rights. In the event of a separation, common law couples may face challenges in determining how to divide their assets and property. However, there are protective measures that common law couples can take to safeguard their property rights, such as entering into a cohabitation agreement.

A cohabitation agreement is a legal document that outlines how a couple’s assets and property will be divided in the event of a separation or the death of one of them. It can also address other important issues such as spousal support and the division of debts. By creating a cohabitation agreement, common law couples can establish clear guidelines for how their property rights will be handled, which can help prevent disputes and legal battles in the future.

Cohabitation agreements play a crucial role in protecting the property rights of common law couples and can provide them with peace of mind and security in their relationship. It is important for common law couples to seek legal advice when creating a cohabitation agreement to ensure that it is legally binding and addresses all relevant issues.

Navigating Property Division as a Common Law Spouse: Practical Tips

Best practices for common law couples to manage property ownership

Common law couples, also known as unmarried couples, face unique challenges when it comes to managing property ownership. Unlike married couples, common law couples do not have the same legal protections and rights when it comes to property division in the event of a breakup or death. Therefore, it is important for common law couples to take proactive steps to ensure that, in the event of separation or the death of one, their property ownership is managed in a fair and equitable manner.

One of the best practices for common law couples to manage property ownership is to establish a cohabitation agreement. This legal document outlines how property and assets will be divided in the event of a breakup or death and can help prevent costly and contentious legal battles. Common law couples should also consider keeping detailed records of financial contributions to shared property such as mortgage payments, renovations and maintenance costs. This can help provide evidence of each partner’s financial investment in the property, which may be useful in the event of a dispute.

It is also important for common law couples to consider keep their finances separate when it comes to property ownership. This means maintaining separate bank accounts and keeping records of individual contributions to shared expenses. By following these best practices, common law couples can help protect their interests and ensure that property ownership is managed in a fair and transparent manner.

Seeking legal advice: When to consult a family law expert

When it comes to common law couples and property rights on separation, seeking legal advice is crucial in order to protect your rights and interests. Consulting a family law expert is especially important when there are disputes over property division, child custody and financial support. It is advisable to seek legal advice as soon as possible, as the laws regarding common law relationships and property rights can be complex and vary from one jurisdiction to another.

A family law expert can provide you with the necessary guidance and support to navigate through the legal process and ensure that your rights are protected. They can also help you understand your legal rights and obligations, negotiate with your former partner and represent you in court if necessary. Consulting a family law expert early on can help prevent costly and time-consuming legal battles in the future.

The process of negotiating property division without court intervention

Common law couples, also known as de facto couples, do not have the same legal rights as married couples when it comes to property division upon separation. In the absence of a legal agreement, the process of negotiating property division after separating can be complex and challenging. Negative emotions such as anger and bitterness can often interfere with the exercise of rational judgement and the spirit of cooperation that is necessary to arrive at an agreement.

However, court should be avoided and it is possible for common law couples to come to a resolution of the issues without court intervention. This typically involves open and honest communication between both parties to determine a fair and equitable division of assets and liabilities. It is important for both parties to disclose all relevant financial information and assets to ensure transparency in the negotiation process.

Seeking the guidance of a legal professional or mediator can be beneficial in facilitating the negotiation process and ensuring that both parties’ rights are protected. Ultimately, reaching a mutually agreeable settlement outside of court can save time, money and emotional stress for both parties involved. Finally, if an agreement can be arrived at it is important that each party have the proposed agreement reviewed by independent legal counsel. Each lawyer will provide their respective client’s with what is called a Certificate of Independent Legal Advice. This document can foreclose subsequent arguments that a party did not understand what she/he was signing.

I hope you have found this content on the law of property division as it pertains to common law spouses. If you have questions or comments I invite you to do so in the ‘Leave a Reply’ section below.

Grant Rayner*

*Grant is a member of the Law Society of Ontario. He has permission from the Law Society of New Brunswick to practice as a visiting lawyer with the firm Langdon Law pending the transfer of his membership with the Law Society in Ontario to the Law Society of New Brunswick.

If you are separating from your spouse in the Upper St. John River Valley, call Grant at Family Law Woodstock: 506.497.2560. Grant has been in practice for more than 39 years and has the experience, sensitivity and maturity to guide you through this difficult period in your life.