Common-Law Recognition In New Brunswick

The amount of time a couple must live together to be considered common-law in New Brunswick depends on the specific laws and policies being applied. For spousal support purposes, a couple must live together for three or more years, or have lived together for one year and have a child together. However, for tax purposes, a couple can be considered common-law after living together for at least 12 continuous months or if one partner is the natural or adoptive parent of the other's child.

Common-law marriage recognition

In New Brunswick, a common-law relationship is when two people live together in an intimate relationship without being legally married. This can include same-sex couples, who have the same rights and entitlements as other people living together in a family relationship.

The time required to live together before being recognised as a common-law couple varies according to different laws and policies. Some provincial laws recognise a common-law relationship after one year of living together, especially if the couple has a child together. In other cases, the requirement is two or three years, with one person being substantially dependent on the other for support. Federal laws, employers, insurance plans, and pension plans may also set out different criteria for recognising common-law relationships.

While living together for a long time does not automatically change a common-law relationship into a marriage, it can grant common-law couples some of the same rights as married couples. For example, in New Brunswick, a legal obligation to support a common-law partner arises after three years of living together, or one year if the couple has a child. This is the same criterion as for married couples. Additionally, under federal law, common-law couples can request a division of CPP benefits and be subject to the same income tax rules as married couples if they have lived together for 12 consecutive months.

To protect their interests, common-law couples can enter into a domestic contract called a cohabitation agreement. This written agreement sets out the couple's rights and responsibilities towards each other, including issues such as property ownership and division. To be legally binding, the agreement must be in writing, signed by both parties, and witnessed.

Common-law rights

In New Brunswick, a common-law relationship is when two people live together in an intimate relationship but are not legally married to each other. The amount of time a couple must live together before they are entitled to particular rights can vary. Some provincial laws recognise a common-law relationship after one year of living together, while others require two or three years.

Rights and Responsibilities

Children

In New Brunswick, all children are legitimate, including those born to unmarried parents. Children will have the same legal status as children of married couples.

Debts

Unlike a married couple, individuals in a common-law relationship are not responsible for their partner's debts unless they have co-signed or signed a contract agreeing to pay for them.

Social Assistance

If your partner moves in with you, they will be considered part of the economic household unit, which may affect the amount of social assistance your household can receive.

Income Tax

For tax purposes, a common-law partner is defined as someone of the opposite or same sex who has lived or is living with you as a spouse for at least 12 continuous months or who has been living with you and is the natural or adoptive parent of your child. If you have a common-law partner, you can claim the same credits as someone who is married.

Criminal Trials

Although a married person generally cannot be forced to testify against their spouse in criminal cases, this does not apply to common-law couples.

Support

The Family Services Act was amended in New Brunswick to extend support obligations beyond married and common-law couples. Support obligations may arise when two persons, not 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.

Property Rights

The rules for property division for married couples under the Marital Property Act do not apply to common-law couples in New Brunswick. Generally, any property that you bring into or buy during the relationship is yours. 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.

Cohabitation Agreements

While you are living together, you can 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. To be legally binding, the agreement must be in writing, signed by both parties, and witnessed.

Separation

To end a common-law relationship, the 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. The couple may want to enter into a Separation Agreement to set out their rights and obligations to each other.

Common-law separation

In New Brunswick, a common-law relationship is defined as a couple cohabiting in a marital relationship without being legally married. Unlike a legal marriage, common-law relationships are independent of any legal formalities, including time requirements, and exist from the first day of cohabitation.

However, for a common-law couple to acquire certain mutual rights and obligations, they must live together for a specified period. In New Brunswick, this period is typically three years, after which a couple may claim spousal support. This period may be shorter, at one year, for purposes such as filing personal income tax and claiming certain benefits.

It is important to note that, regardless of the length of time spent together, common-law couples never acquire the same rights as married persons, particularly regarding an equal share of marital property. Upon separation, common-law couples do not have a right to an equal division of property, and each party typically keeps what they brought into the relationship or purchased during it.

If a common-law couple wishes to protect their interests and clearly define their rights and responsibilities during and after their relationship, they can enter into a domestic contract called a cohabitation agreement. This agreement can outline property ownership and division, as well as support arrangements, but cannot include child custody or access provisions.

In the case of separation, common-law couples do not need to undergo a divorce procedure; they simply stop living together. However, legal obligations may have arisen during the relationship, especially if the couple has children or if one partner was financially dependent on the other. In such cases, a separation agreement can be created to outline the rights and obligations of each party, including child custody, access, and support.

While the court generally respects the terms of a cohabitation or separation agreement, it can modify provisions relating to child support, custody, or access if it believes changes are in the best interest of any children involved. Additionally, the court may disregard provisions if it believes one party did not consult a lawyer or if the agreement is inequitable.

In summary, common-law separation in New Brunswick involves understanding the rights and obligations that arise after cohabiting for a specified period, typically three years. While common-law couples do not have the same rights as married couples, they can protect their interests through cohabitation agreements and address legal obligations through separation agreements, particularly when children or financial dependencies are involved.

Common-law spousal support

In New Brunswick, a common-law relationship is defined as one where two people live together in an intimate relationship but are not legally married to each other. To be considered common law for spousal support purposes, a couple must have lived together for three or more years. This is also the case for same-sex couples, who have the same rights and entitlements as other people living together in a family relationship.

The amount of spousal support is based on need and ability to pay. A judge will consider several factors when determining spousal support, including the length of the relationship, the income levels of both parties, and whether there are children of the marriage. Spousal support is considered taxable income for the person receiving the payments, and the payor may be able to claim these payments as tax deductions.

The Family Services Act outlines that spousal support may be payable when a common-law couple has lived together for three or more years. The amount of, and entitlement to, spousal support is the same for both married and common-law couples. An application for spousal support must be made within one year of separation.

It is important to note that common-law couples do not have the same rights to marital property as married couples. Each party typically keeps what they brought into the relationship or bought during the relationship. If a couple is unhappy with this arrangement, they can bring a claim for unjust enrichment, but these claims are often expensive and uncertain, and they do not result in an equal division of property.

Common-law property rights

In New Brunswick, common-law couples do not have the same rights as married couples, especially when it comes to property rights upon separation or death. The rules for property division for married couples under the Marital Property Act do not apply to common-law couples. In general, each party keeps what they brought into the relationship or bought during it. If a common-law couple breaks up, the person whose name is on the deed or who paid for the item may be the only one entitled to it.

However, if the property was purchased, developed, or maintained with the other partner's contribution of labour, time, or money, they may be entitled to some of it. The courts use a legal doctrine called 'constructive trust' to help people in common-law relationships who are not eligible to apply under marital property laws. The amount that one can receive depends on the extent of their contribution, with homemaking and childcare considered important contributions.

If a common-law partner wishes to claim a share of their partner's property, they can bring a claim for unjust enrichment, arguing that their partner was enriched at their expense. However, these claims are expensive and uncertain, and they never bring about an equal division of property.

To protect their property rights, common-law partners can enter into a cohabitation agreement that clearly sets out the ownership and division of property. This is a written agreement between partners that outlines their rights and responsibilities towards each other. To be legally binding, the agreement must be in writing, signed by both parties, and witnessed. Each partner should consult a different lawyer to ensure their interests are protected.

In terms of the length of time required to be considered a common-law couple in New Brunswick, the general answer is three years. However, this can vary depending on the specific rights and obligations being discussed. For example, to be considered common-law for spousal support purposes, a couple must have lived together for three or more years, with one person being substantially dependent on the other. This timeframe is reduced to one year if the couple has a child together. On the other hand, when it comes to filing personal income tax, the Canada Revenue Agency (CRA) considers individuals common-law after just one year of living together.

It is important to note that no amount of time living together will change a common-law relationship into a marriage. Common-law couples do not have the right to marital property when they split up, regardless of the duration of their relationship.

Frequently asked questions