Over 87,530 people in Manitoba report that they are living in a common-law relationship, and countless others are unaware of their status as a common-law partner. But what is a common-law relationship and more importantly what rights and obligations do they carry?
What is a Common-Law Relationship?
A relationship is considered common-law when two people over 18 who are not married to each other are living in a conjugal relationship (see below for details on what a conjugal relationship entails). Common-law relationships include same-sex and opposite-sex couples.
How Does a Couple Become Common-Law Status?
In Manitoba there are two ways in which a couple can become common-law. The first is by registering as a common-law couple with the Vital Statistics Registry, the second is by the passage of time.
Registration: A couple can register their relationship as common-law by filling out a form with the Manitoba Vital Statistics Agency. In order to do so both parties have to be 18 years or older, and have to be living in a conjugal relationship in Manitoba. The parties cannot be married to anyone and they must also not be in any other common-law relationship.
Passage of Time: Many people are surprised to learn that a couple can also achieve common-law status simply by the passage of time. In order to become common-law by the passage of time a couple must be living in a conjugal relationship, usually for a minimum of three years. There are some exceptions to this, for example the time period drops to one year if the parties have a child together, or for certain federal government purposes a couple need only be living together in a conjugal relationship for one year. An individual can be married to one person and in a common-law relationship with another due to the passage of time. This can occur when an individual is separated from their spouse but not legally divorced, and they have been living with a new partner for three years.
What is Considered Conjugal?
A common area of confusion is what is considered “conjugal”. Simply living with a roommate for three years will not trigger common-law rights and obligations; they need to be in a conjugal relationship.
Whether or not two individuals are in a conjugal relationship is determined by the dynamics of their relationship. Some factors which are considered in determining if a relationship is conjugal are:
- Living under the same roof
- Presenting themselves as a couple to others
- If they have a sexual relationship
- If they maintain an attitude of fidelity to each other
- Their sleeping arrangements
- If they participate in community or neighbourhood activities as a couple
- If they share household chores or perform any personal services for one another
This is not an exhaustive list, and every factor on the list need not be met to be considered to have a conjugal relationship. For example, many couples can be in a conjugal relationship even if sex is not yet or no longer an element of their relationship.
When Does a Common-Law Relationship End?
How a common-law relationship ends is dependent on how it started.
Registration: If a couple began their relationship by registering at the Vital Statistics Agency, then in order to cease to be a common-law couple they must either register a dissolution at the Vital Statistics Agency after one year of living separate and apart.
Passage of Time: If a couple became common-law by the passage of time then they can only cease their common-law relationship the same way. This means by living separate and apart for three years.
It is important to know when a common-law relationship terminates as this effects the parties ability to apply to the court for relief such as property division or spousal support as discussed below.
What is “Separate and Apart”?
Another term that causes some confusion is living “separate and apart”. The same factors used to determine a conjugal relationship are used to determine if a couple is living separate and apart. Again the list is not exhaustive or simple a check list, for example a couple can remain living in the same home but be living separate and apart in most other capacities. Living separate and apart simply means that the couple has decided to no longer continue their romantic relationship.
Why It Matters If You Are Common-Law Status?
When a couple becomes common-law status each party obtains rights as well as has obligations imposed on them by the law. Under Manitoba law common-law couples are treated the same way as married couples in most respects. Below is a summary of some of the rights and obligations that are triggered when a couple becomes common-law.
Spousal Support: By being in a common-law relationship, the law assumes that the parties are undertaking to support each other financially. Therefore, then a common-law relationship breaks down one spouse may have an entitlement to be paid spousal support from the other. Spousal support entitlement and quantum are calculated the same way for common-law couples as they are for married couples.
Assets and Liabilities: A common-law couple obtains equal rights to property acquired during their relationship. This means that upon the relationship breakdown, the parties are each entitled to fifty percent of the parties property. Take caution as this also means that the parties equally share the debt acquired during the relationship. Some property is excluded from sharing such as pre-acquired property, gifts and inheritances.
Financial Disclosure: Upon the breakdown of a common-law relationship each party is entitled to full financial disclosure from the other party. This includes disclosing income tax returns and documentation of all assets and debts.
Wills and Estates: If an individual dies, their common-law partner can claim an interest in their estate. If an individual dies without a will the surviving partner can receive all or most of their deceased partners estate. If an individual dies leaving a will that neglects the surviving partner, the law can intervene to ensure the partner receives an equal amount of the couples family property.
Federal Matters: After only 1 year of living together in a conjugal relationship a couple is considered common law for certain federal matters such as income tax, and immigration matters.
What Can You Do About It?
If you and your partner decide that you do not want to incur the rights and obligations that the law bestows upon common-law couples you can opt-out. Similar to
Pre-Nuptial Agreements that married couples can enter into, common-law couples can enter into Cohabitation Agreements. Cohabitation Agreements outline how a couple wishes to deal with their affairs in the event that their relationship breaks down. Cohabitation agreements can deal with all aspects of a relationship breakdown, or they can outline the areas in which the couple wishes to depart from the current law.
Family matters are all unique and can be very complicated depending on the individual circumstances. The law on common-law relationships is constantly evolving and changing. For the best information contact a lawyer to discuss your specific matter. If you wish to learn more about your rights and obligations as a common-law partner or wish to discuss the benefits of a cohabitation agreement contact a family lawyer.
Seeking a family lawyer? We would be happy to help you, contact Pitblado Law to arrange a consultation with one of our family lawyers.