There may not be a ring on your finger, but that doesn’t mean that you don’t need to be aware of your rights should you find yourself separating from your partner. From division of the assets to threats of spousal support – how can you protect yourself financially?
What Is Common Law? Who Does It Apply To?
A common law relationship is determined when two people live together as if they were married but are not. In Canada, the two people in the relationship can be of the same sex or opposite sex – it doesn’t matter.
How Long Do You Have to Live Together Before Common Law Applies?
The answer to this question depends on where you live and whether or not the issue is under federal or provincial jurisdiction. Provincial law determines property division, whereas federal law governs the division of federal government pensions and Canada Pension Plans.
“Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months,” says Common Law Separation Canada. “As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.”
Here’s how common law works in some of Canada’s provinces:
Nova Scotia: you have to live together for 2 years
British Columbia: “You must cohabit 2 years in a marriage-like relationship,” so roommates don’t count.
Ontario: You must cohabit for a minimum of 3 years, unless you have a child together.
New Brunswick: “You must live together continuously in a family relationship for 3 years and one person must be substantially dependent on the other for support, or, where the couple lives together for one year and has a child together.”
What If We Took A Break Somewhere In Between?
The answer to this question depends on what province you live in. If you have questions regarding common law in your specific province, be sure to ask a law expert.
If My Partner and I Split, Do I Have To Ask For A Divorce?
No, since you are not legally married, you do not need to ask for a divorce. The relationship is over when one of you determines that it is over.
Better Safe Than Sorry
I was in a long-term relationship where my partner and I split after many years. We weren’t married, but we might as well have been. After living together for so long, we had accrued a lot of "stuff" – furniture, dishes, appliances – and that stuff cost money. In fact, by the time we split, most of what we’d entered into the relationship with was long gone. But we didn’t just have stuff together. We had joint savings and chequing accounts. And we had debt. What a mess it was, trying to figure it all out, especially when all we wanted to do was to go our separate ways.
To avoid what happened to my ex and me, here’s what you need to know:
- Keep your bank accounts separate. Don’t share passwords with your partner. If you do, once you break up, close the accounts and/or change the passwords.
- Come up with a shared banking system where you both retain your own accounts and credit cards.
- Get it in writing!
The Cohabitation Agreement
To retain control over what will happen if you and your common law partner choose to split, you might consider going with a cohabitation agreement. Similar to a prenuptial agreement, a cohabitation agreement outlines the rights and obligations of both people in the relationship. This agreement not only protects you if the two of you decide to split, but it also protects if the relationship ends as a result of an untimely death.
Although the cohabitation agreement does not deal with child custody, child support or visitation rights, it does deal with property division and spousal support. The terms of the agreement can even determine different results given how the relationship ends – through separation or death.
Cohabitation agreements are legally valid, although the court system does have the right to invalidate them if it sees fit. The agreement must be in writing, and is not valid if determined orally. Although a certified law professional will recommend that you have an agreement drawn up the moment you decide to cohabitate, often that just isn’t feasible. Ideally, the agreement should be drawn up before you reach the legal common law date – in Ontario, you have three years to come up with an agreement. In the meantime, if you choose to get married, the agreement remains intact, unless you specify otherwise.
According to the Common Law Separation Canada website, here are some of the things couples are looking for in an agreement:
- They want the certainty of marriage without the ring, and to avoid legal issues should they arise.
- If the mother takes time off to raise their child, the couple wants to make sure that she doesn’t suffer financially.
- They want to make sure that the family business (of one of the two) stays in the family.
- They want to “ensure that the financially less secure partner is protected.”
Breaking up sucks. But breaking up and arguing for months afterwards can be even worse. Know your rights now and avoid problems by taking the necessary precautions. Although there are plenty of sites online devoted to providing quick-and-easy legal documents, if you’re really concerned, call a local law professional.
