Ask A Lawyer – “How do I know when I’m in a ‘common law relationship’ and what are some of the legal implications of being in one?”

Generally speaking, two people living together in a romantic relationship are in a common law relationship. The implications of this type of relationship when it breaks down are different depending on what one person is seeking from the other, the legislation that applies to the situation, and factors such as children or the length of cohabitation. It is important to note that in some contexts common law couples do not have the same rights as legally married couples.

For the purposes of marital property division: in New Brunswick, the division of marital property is regulated by the Marital Property Act, which only applies to married couples. The rights of common law couples are not addressed under this legislation; they are determined according to previous cases from the courts. As a result, dividing up property that was owned or used by a common law couple can be somewhat more complicated when a breakup occurs.

For the purposes of spousal support: in New Brunswick, spousal support is currently determined according to the Family Services Act*and related case law. The right to spousal support is less clear-cut for common law couples than for married couples. A common law spouse must fulfill one of two requirements to claim spousal support after a breakup: they had a biological child together and lived together in a “family relationship of some permanence,” OR they lived together for at least three years in a “family relationship” and one person was “substantially dependent upon the other for support.” Another important thing to keep in mind is that at this time, a common law spouse must seek spousal support within one year of the breakup; after that time, they can no longer make a claim.

* Please note that the Family Services Act will eventually be repealed and replaced by the Family Law Act,but a date has not yet been set for this to happen. Please keep an eye on our website for future updates, and if you have any questions about your rights and obligations under either Act, contact us.

For the purposes of pension division: Most employment-related pensions in New Brunswick are regulated by the Pension Benefits Act, which allows for the division of a pension when a couple breaks up or one of them dies. This Act defines “common law partner” as someone who “was cohabiting in a conjugal relationship… for a continuous period of at least two years” before a breakup occurred or one person died.  This legislation gives common law spouses many of the same rights as married spouses, although if someone with a pension plan has both a common law spouse and a spouse through marriage, the spouse through marriage may take precedence by default in certain contexts.

If you have any questions or concerns regarding marital property, spousal support, pensions, or any other legal matter, please contact us to speak to one of our lawyers.

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