Gavin Howe
In Nova Scotia, a common-law relationship is defined as two people living together in a marriage-like relationship for at least one or two years. Common-law relationships are legally recognised in Nova Scotia, and while they create many of the same legal obligations as a marriage, there are some key differences. For instance, common-law couples do not automatically have the same rights as married couples when it comes to property division, taxes, immigration status, and pensions. To ensure their rights are protected, common-law couples may consider registering as domestic partners with Vital Statistics at Service Nova Scotia and creating a cohabitation agreement with the help of a lawyer.
| Characteristics | Values |
|---|---|
| Definition of a common-law relationship | Two people who are not married but live together in a 'marriage-like' relationship. |
| Time required to become common-law | Two years, according to Nova Scotia's Maintenance and Custody Act. The Canada Pension Plan says one year. |
| Property division upon separation | No default equal sharing of property for common-law couples. Each person takes what they own, and jointly owned property is split evenly. |
| Inheritance rights | Common-law partners are not considered spouses and cannot make claims under the TFMA. |
| Custody and child support | Not affected by the distinction between common-law and marriage. The best interests of the children involved are the main consideration. |
| Spousal support | May be treated differently for common-law couples. |
| Registration | Common-law couples can register with Vital Statistics at Service Nova Scotia and gain rights similar to married couples. |
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What You'll Learn
Common-law vs. marriage
In Nova Scotia, a common-law relationship is defined as two people who are not married to each other, live together, refer to themselves as spouses or partners, and share bills and finances. To be considered common-law partners, a couple typically must have lived together for at least one to two years in a marriage-like relationship.
Rights and Obligations
One key difference between common-law and married couples in Nova Scotia is the rights and obligations they have under the law. When two people get married, several laws automatically apply to them, such as the Matrimonial Property Act, which indicates that assets are generally divided equally upon separation or divorce. On the other hand, common-law couples do not have the same automatic rights and must register as domestic partners with Vital Statistics at Service Nova Scotia to gain similar rights as married couples. These rights include pension benefits and the division of assets upon separation or death.
Property Division
Upon separation, married couples in Nova Scotia must share their assets equally, according to the Matrimonial Property Act. However, this law does not apply to common-law couples unless they have a registered domestic partnership. When a common-law relationship ends, each person typically takes the property they individually own, unless there is co-owned property, in which case it is shared.
Spousal Support
Spousal support may also be treated differently between common-law and married couples. In married relationships, certain presumptions and considerations exist in law that may not be extended to common-law relationships. However, when it comes to custody, parenting time, and support of children, the legislation and courts treat both married and unmarried couples the same, focusing on the best interest of the child.
Wills and Inheritance
In the event of the death of a common-law partner without a valid will, their property will go to their family members, not their common-law partner. Nova Scotia's law about wills recognizes married spouses and registered domestic partners but not common-law partners. Therefore, it is essential for common-law couples to plan their wills and inheritance with the help of legal professionals to ensure their partner inherits their property.
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Rights and obligations
One significant difference is the Matrimonial Property Act, which applies only to married couples in Nova Scotia. This Act indicates that upon separation or divorce, assets are generally divided equally, which is not the case for common-law couples. There are several factors to consider in determining the division of assets after a common-law relationship breakdown, such as who contributed to the assets and how they were maintained or improved. Division of a home can be more complex in a common-law relationship due to the absence of a "matrimonial home" definition.
Common-law couples can protect their rights and obligations by creating a cohabitation agreement before moving in together. This agreement outlines financial arrangements, parenting plans, support issues, and property division in the event of a separation. It is beneficial to seek independent legal advice and consult with a lawyer familiar with Nova Scotia law when drafting such agreements.
In terms of parenting and support, common-law couples have similar rights and obligations as married couples. The Parenting and Support Act in Nova Scotia defines an unmarried spouse as one of two spouses who have lived together in a conjugal, marriage-like relationship for at least two years or have a child together. Custody and child support decisions are based solely on the best interests of the children involved, regardless of whether the couple is married or in a common-law relationship.
Additionally, common-law couples should be aware of their rights and obligations regarding wills and inheritance. In Nova Scotia, common-law partners are not recognized as spouses under the TFMA, and they cannot challenge their partner's will if they are not adequately provided for. Therefore, it is crucial for both partners to have a will to ensure that their property goes to the other partner in the event of their death. Without a valid will, the property of a deceased common-law partner will go to their family members rather than their partner.
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Property division
In Nova Scotia, common-law couples do not have the same rights as married couples when it comes to property division. The Matrimonial Property Act, which dictates a 50/50 division of assets for married couples, does not apply to common-law relationships. There is no applicable legislation governing property division for common-law couples in the province.
Common-law partners do not have an automatic right to share property when they separate. They must rely on a patchwork of legislation and legal principles for property division. If there is jointly owned real property, such as a house, a common-law partner may apply to the Supreme Court for a sale and division of the proceeds.
To reduce uncertainty in the event of a relationship breakdown, common-law couples can take the following steps:
- Create a cohabitation agreement: This is a legally binding contract that outlines how property and other matters will be handled in the event of a separation.
- Register as a Domestic Partnership: In Nova Scotia, common-law couples can register as a domestic partnership with the provincial government, granting them similar rights and obligations as a married couple.
It is important to note that property division for common-law couples can be complicated, and it is recommended to consult a lawyer for specific advice. Wills are also crucial for common-law partners, as their property may not automatically go to their partner in the event of their death.
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Custody and child support
In Nova Scotia, custody and child support are not dependent on marital status. The courts and legislation do not discriminate between married or unmarried couples when it comes to parenting time, custody, or support of the children. The only consideration is what is in the best interest of the child or children. Child support is established in legislative guidelines, and it does not matter whether the couple was married or in a common-law relationship.
The Parenting and Support Act, which came into effect on May 26, 2017, deals with issues of custody, parenting, child support, and/or spousal support when common-law spouses or partners separate. Before this date, the Maintenance and Custody Act referred to support as 'maintenance'. The terminology changes do not impact the amounts or determination of support.
If you do not have a court order for child support, you can apply to the court for one. The process can be complex, depending on your circumstances, and it is recommended to seek advice from a lawyer or court staff. If you have a separation agreement, you can register it with the court, and it becomes a court order. Support amounts can then be enforced through the Maintenance Enforcement Program (MEP).
There are also Provincial Child Support Guidelines in place, which outline the requirements for parents involved in child support orders. For example, if served with an application for a child support order, a parent must provide income information within a specified timeframe. This information is necessary to determine the amount of the order.
Additionally, there are specific rules for calculating child support in situations with split or shared parenting arrangements. Basic guidelines exist, but there are no specific formulas, except for split parenting scenarios. It is important to note that child support orders can be adjusted if the paying parent's income exceeds $150,000.
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Benefits and pensions
In Nova Scotia, common-law relationships are legally recognised as marriage-like relationships. However, common-law couples do not have the same rights and obligations as married couples, especially regarding property, debts, and pensions.
Benefits
The Canada Pension Plan recognises common-law partners as couples who have lived together for at least one year. This affects income tax, immigration status, and eligibility for the Canada Pension. The Nova Scotia Parenting and Support Act also grants common-law couples certain rights, including medical and company benefits. Companies' employee policies or insurance companies determine what qualifies a common-law spouse for employee or medical benefits.
Pensions
Common-law couples do not have the same rights as married couples when it comes to pensions. However, there are laws in place that protect common-law partners regarding pension plans. The Pension Benefits Act and Related Provincial Pension Legislation apply when a member's provincially regulated pension is divided between them and their spouse, registered domestic partner, or common-law partner. The common-law couple must have lived together for at least two years to be considered a common-law partnership.
To ensure fairness in the division of pensions, it is advisable to have a cohabitation agreement or a written separation agreement. This helps outline how property and pensions will be divided in the event of a separation. It is also recommended to seek independent legal advice to understand your rights and obligations, especially as laws in Nova Scotia may differ from other jurisdictions.
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Frequently asked questions
A common-law relationship in Nova Scotia is where 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.
To be considered a common-law couple in Nova Scotia, you must live together in a marriage-like relationship for at least one or two years, depending on the legislation being applied. The Canada Pension Plan says one year, whereas the Parenting and Support Act and Nova Scotia's Maintenance and Custody Act say two years.
Common-law couples have many of the same rights as married couples in Nova Scotia, including tax, immigration status, and pension benefits. However, there are some differences, particularly regarding the division of assets and property when the relationship ends. Married couples are generally entitled to a 50/50 split of assets, whereas there is no such presumption for common-law couples. Additionally, common-law partners are not considered spouses under the TFMA and cannot make an application for a portion of their partner's estate under this law.
