Written by: Elsa Falkenberg.


Am I legally common law? The short answer is, “it depends.

Common law partners now have many of the rights and obligations traditionally available only to married couples.  Marital status is a straightforward point (married or unmarried), as are common-law relationships that have been registered with Vital Statistics.   It is those common-law relationships that have attained status as a function of time that can be more difficult to define because whether you have that status will depend on the governing legislation.  For example:

  • The Family Maintenance Act defines common law status as either cohabitation “in a conjugal relationship for a period of at least three years” or cohabitation “in a conjugal relationship for a period of at least one year” where the parties are the parents of a child together;
  • The Family Property Act defines common law status as cohabitation “in a conjugal relationship for a period of at least three years”; and
  • The Pension Benefits Act defines it as cohabitation “in a conjugal relationship for a period of at least three years” where either party is married or cohabitation for a lesser period of only one year if neither is married.

Accordingly, you can be in a common-law relationship notwithstanding your marriage to someone else.

The ways in which the legislation overlaps with one another adds further complexity, particularly in relation to property rights. A pension is a shareable family asset under The Family Property Act but provincial pensions are also subject to myriad other provisions under The Pension Benefits Act. Specifically, The Pension Benefits Act mandates the division of provincial pensions where parties are married or common law. If you are common law for the purposes of The Pension Benefits Act, but not under The Family Property Act, property generally would not be shareable, but a pension would be.

If you are experiencing a breakdown in your common-law relationship, understanding your rights is crucial and the legalities can be understandably overwhelming. Speaking with a lawyer can help clarify what rights you might have and the next steps to take.

 

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