Gavin Howe
Common-law relationships are becoming more common in Nova Scotia, Canada, as more couples delay marriage or choose not to marry at all. A common-law relationship in Nova Scotia is defined as two people living together in a marriage-like relationship for at least one or two years, depending on the law in question. While common-law relationships create many similar legal obligations to marriage, there are some key differences, especially regarding property and inheritance rights. This article will explore the rights and obligations of common-law couples in Nova Scotia, including cohabitation and separation agreements, and how these differ from married couples.
| Characteristics | Values |
|---|---|
| Time required to become common-law | 1 year as per the Canada Pension Plan; 2 years as per the Parenting and Support Act |
| Definition of common-law relationship | Two people who are not married but live together in a 'marriage-like' relationship, sharing finances and referring to each other as spouses or partners in public |
| Rights of common-law couples | Do not have the same rights and obligations as married couples, especially regarding property division and spousal support |
| Separation process | No formal court process required; a separation agreement can be created with the help of a lawyer |
| Inheritance rights | Common-law partners are not recognized as spouses under the TFMA and cannot challenge their partner's will if they are not adequately provided for |
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What You'll Learn
Common-law rights and obligations
In Nova Scotia, a common-law relationship is defined as two people who live together in a marriage-like relationship without being legally married. While common-law relationships are increasingly common in the province, there are important differences in the rights and obligations of common-law couples compared to legally married spouses.
One significant distinction lies in the division of property upon separation or the death of a partner. The Matrimonial Property Act, which mandates a 50/50 split of assets and debts accrued during the marriage, applies only to legally married couples in Nova Scotia. In contrast, common-law couples do not have a presumption of equal division of property. When a common-law relationship ends, each partner typically leaves with the assets held in their name, while jointly owned assets are split evenly. However, in long-term common-law relationships with significant financial interdependence, it may be possible to claim a share of assets that were not in one's name, although this can be legally complex.
Additionally, common-law partners are not considered spouses under the TFMA (Testators' Family Maintenance Act), which allows spouses and children to challenge a will if they were not adequately provided for. As a result, common-law partners may not have the same rights to their partner's estate in the absence of a will.
When it comes to custody and support issues, Nova Scotia's legislation and courts treat common-law couples and married couples similarly. Custody, parenting time, and support arrangements are determined based on the best interests of the children involved, regardless of the marital status of the couple. Child support guidelines are consistent for both married and common-law couples.
To protect their rights and assets, common-law couples can enter into a cohabitation agreement, similar to a prenuptial agreement. This legal document is designed to safeguard existing and future assets in the event of a relationship breakdown. It is recommended that this agreement be prepared by a lawyer to ensure it is legally binding and comprehensive.
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Cohabitation agreements
In Nova Scotia, a common-law relationship is defined as living together in a marriage-like relationship. This means that the couple shares a home, refers to themselves in public as spouses or partners, and shares finances. To be considered a common-law couple, partners must have lived together for at least one or two years, depending on the legislation being applied.
In Nova Scotia, common-law couples do not have the same rights and obligations as married couples under the law, particularly regarding property, debts, and pensions. For example, upon separation or divorce, married couples typically divide their assets 50/50, while there is no such presumption for common-law couples. Common-law partners cannot get divorced but can obtain a separation agreement to deal with their affairs, including property.
It is important to note that common-law partners are also treated differently in other areas, such as inheritance. In the event of a common-law partner's death without a valid will, their property will go to their family members, not their partner, as common-law partners are not recognized as spouses under Nova Scotia's law about wills.
To summarize, while cohabitation agreements are not mandatory, they can provide clarity and protection for common-law couples in Nova Scotia, given the unique legal considerations of their relationship status. These agreements should be prepared with the assistance of a lawyer to ensure they are legally binding and comprehensive.
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Separation agreements
In Nova Scotia, common-law relationships are legally recognised when two people who are not married live together in a 'marriage-like' relationship. This means that they share a home, refer to themselves in public as spouses or partners, and share finances.
Common-law relationships do not have the same rights and obligations as married couples under the law. For instance, when a married couple separates, assets are generally divided equally. This is not the case for common-law couples, and there are a number of factors that determine who ends up with what after a separation.
If you are in a common-law relationship in Nova Scotia and are considering separating, you can make a separation agreement. This is a legally binding document that outlines the terms of your separation, including the division of assets. It is important to note that common-law partners cannot get divorced, but a separation agreement can help to separate your affairs, including property.
A separation agreement should be written by a lawyer who can ensure that it is legally binding and contains everything that it should cover. Lawyers can also advise on what should be included in the agreement and how it can be enforced. It is recommended that each partner seeks independent legal advice from separate lawyers before signing the agreement.
In addition to a separation agreement, common-law partners may also benefit from a cohabitation agreement, which is similar to a prenuptial agreement. This can help protect existing and future assets in the event of a separation. While a cohabitation agreement is not required, it can provide peace of mind and ensure that both partners are protected.
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Custody and support
In Nova Scotia, custody and support issues in common-law relationships are generally treated the same as those in married relationships. The courts and legislation do not discriminate between married and unmarried couples when it comes to matters of custody, parenting time, and support for children. The best interest of the child is the only consideration in such cases. Child support guidelines are established in the legislative guidelines, and they apply equally to married and common-law couples.
The Parenting and Support Act comes into play if common-law spouses or partners separate and issues of custody, parenting, child support, and/or spousal support need to be addressed. It is important to note that this Act does not deal with property. While married couples can formalize their separation by filing for divorce, common-law partners cannot get divorced in the same way. Instead, they can obtain a separation agreement to handle their affairs, including property division.
To ensure fairness in the event of a breakup, common-law couples can enter into a cohabitation agreement, which is similar to a prenuptial agreement. This agreement outlines the details of parenting, financial maintenance (support payments), property division, and any other relevant issues. It is a legally binding contract signed by both parties before contemplating separation.
In terms of spousal support, there are differences between common-law and married relationships. In Nova Scotia, spousal support is not an automatic entitlement for common-law partners. The Maintenance and Custody Act of Nova Scotia governs the rights to spousal support, and it requires a common-law relationship of at least two years for spousal support to be claimed. The amount and duration of spousal support are determined by factors such as the length of the relationship and each person's income.
It is worth noting that common-law relationships in Nova Scotia are defined as living together in a marriage-like relationship. This definition includes various indicators such as commitment, shared meals, household duties, financial support, and presenting themselves as a committed couple. The required duration for a common-law relationship can vary, but it is generally recognised as two years in family law.
To summarise, while custody and support issues are generally similar for married and common-law couples in Nova Scotia, there are distinct differences in spousal support entitlements and property division upon separation. Common-law couples are advised to seek legal advice to understand their specific rights and obligations.
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Property division
In Nova Scotia, common-law couples do not have the same rights and obligations as married couples. For instance, upon separation or divorce, assets are generally divided 50/50 for married couples, but this is not the case for common-law couples. There are several factors that determine who ends up with what after a common-law relationship ends, such as who contributed to the assets.
Common-law partners do not have an automatic right to share property when they separate. Only married couples or registered domestic partners have this right. To clarify their rights to shared property, common-law couples can create a cohabitation agreement, a legally binding contract between the couple, similar to a prenuptial agreement. This can outline the details of property division in the event of a breakup.
Former common-law couples can also agree on arrangements in the terms of a separation agreement. This can include the right to own the home or share in the proceeds of the home if it is sold. An application for exclusive occupation can be made to the court if one party wants to be the only one allowed to live in the residence.
If common-law partners own a home together and one partner will not agree to sell the house when they separate, the other partner can apply to the Nova Scotia Supreme Court using a law called the Partition Act. This law may allow a judge to order that the property be sold and the money from the sale be divided, or that one party buys out the other's share.
It is important to note that the rules around dividing property and pensions for common-law couples are complicated, and it is recommended to seek legal advice.
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Frequently asked questions
In Nova Scotia, a common-law relationship is defined as living together in a marriage-like relationship. According to family law, a common-law relationship typically requires living together for two years. However, the Canada Pension Plan defines a 'common-law partner' as someone you have lived with for one year, and the Parenting and Support Act defines a 'spouse' as someone with whom you have lived together in a conjugal relationship for two years or with whom you have a child.
Common-law couples do not have the same rights and obligations as married couples under the law relating to property, debts, and pensions. For example, the Matrimonial Property Act, which applies to married couples in Nova Scotia, indicates that upon separation or divorce, assets are generally divided equally, which is not the case for common-law couples. However, common-law couples can register as domestic partners with Vital Statistics at Service Nova Scotia, which grants them many of the same rights as married couples, including pension benefits and the division of assets if they separate or if one partner dies without a will.
Common-law partners cannot get divorced, but they can create a separation agreement to deal with their affairs, including property. A cohabitation agreement, written by a lawyer, can also be useful in the event of a separation by outlining what property rights each partner has.
