Cecily Zamora
In Quebec, a common-law relationship, often referred to as a de facto union, is when two people live together without being married or in a civil union. To be considered a common-law couple, it is not necessary to live together or be physically present under the same roof. However, for tax purposes, a couple must live together continuously for at least two years to be considered a de facto couple, and at least three years for pension purposes. De facto partners do not inherit their partner's assets if their partner dies without a will, therefore, it is important to create a will to ensure the protection of a common-law partner in the event of death.
| Characteristics | Values |
|---|---|
| Official term in Quebec | De facto couples or de facto union |
| Live together? | Not necessary, but must live together for at least two years to be considered a de facto couple for tax purposes and at least three years for pension purposes |
| Rights | Do not have the same protections or rights as married couples, including property rights and medical decision-making rights |
| Inheritance | De facto partners are not considered heirs and do not inherit anything if their partner dies without a will |
| Separation | No legal process for ending a common-law relationship; typically involves separating from your partner, stopping living together, and annulling your cohabitation agreement |
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What You'll Learn
Cohabitation agreements
In Quebec, common-law relationships are referred to as "de facto" unions. Unlike married couples, common-law couples are not automatically entitled to protections such as the right to inherit property or assets from their partner in the event of their death.
To establish rights and obligations toward each other, common-law couples in Quebec can enter into a cohabitation agreement. This type of agreement allows couples to decide which specific goods they wish to share, such as a house, cottage, furniture, or vehicles. It can also outline the rules governing the shared residence, the division of property, and support payments in the event of a break-up. While there is no specific form for a cohabitation agreement, it is recommended to consult a notary to prepare one.
- Property ownership: It is important to establish a list of property owned by each spouse at the beginning of their cohabitation or when signing the agreement. This helps determine what belongs to whom in the event of a separation.
- Shared residence: Cohabitation agreements can outline the rules governing the shared residence, including any non-partitionability clauses.
- Division of property and assets: In the absence of a cohabitation agreement, each spouse would typically leave the relationship with their own property and assets. The agreement allows couples to decide how they will divide property and assets acquired during their life together.
- Support payments: Cohabitation agreements can include provisions for support payments, such as alimony or child support, in the event of a break-up.
- Mediation: Couples can also include mediation clauses in their cohabitation agreement, outlining how they will resolve disputes or disagreements.
- Notarization: While not mandatory, it is recommended to have a cohabitation agreement prepared or reviewed by a notary to ensure its legality and enforceability.
In addition to a cohabitation agreement, it is also essential for common-law couples in Quebec to have a will. This document ensures that your partner will inherit according to your wishes in the event of your death. Without a will, your common-law partner may not be entitled to anything under Quebec law, even if you have lived together for an extended period.
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Inheritance rights
In Quebec, de facto or common-law partners are not considered heirs and do not automatically inherit their partner's estate if they die without a will (intestate). This means that if you want your common-law spouse to inherit, it must be specified in a legal will.
To be considered a de facto couple in Quebec, partners must live together for at least two years. This requirement remains the same even if the couple has children. In Quebec, married spouses have specific rights to the family or matrimonial home, regardless of whose name is on the title. De facto partners do not have the same automatic rights to the family home or any other property acquired during the relationship.
If there is no will, the estate will be considered ab intestate, and the rules of legal devolution will apply. The Civil Code of Quebec has established rules of devolution (division) according to the different categories of family members who may survive the deceased. Generally, relatives closest to the deceased are more likely to inherit than distant relatives.
To ensure that your partner inherits your estate, it is important to create a will naming them as a beneficiary. By creating a will, you can ensure that your estate is distributed according to your wishes, and reduce the amount of work and stress for your loved ones.
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Protection mandates
In Quebec, a common-law spouse is not automatically entitled to anything. To ensure your common-law spouse is protected in the event of your death, you must create a will naming them as a beneficiary.
A will is a legal document that outlines your wishes for your estate and other important matters after your death. It can be created through online platforms like Willful, which offer an affordable and convenient way to create a will. Alternatively, you can engage the services of estate lawyers or notaries to create a fully customised will. Notarial wills, created by notaries, are the only type of will in Quebec that does not require probate.
In addition to a will, another important legal tool for protection in Quebec is a protection mandate. A protection mandate is a document in which a person, known as the mandator, expresses their wishes and names one or more trusted individuals, called mandataries, to make decisions on their behalf and manage their person and property if they become incapable. The mandator should choose someone reliable and responsible as their mandatary, and it is recommended to have a frank conversation with the mandatary about their future responsibilities. It is also possible to name substitute mandataries, who can step in if the primary mandatary is unable to perform their duties or is no longer alive.
To be valid, a protection mandate must be signed before two witnesses who must also sign the document. It is recommended to keep the original document in a safe place and provide a copy to your mandatary. If a lawyer is involved in drafting the mandate, they will register it in the Registers of Wills and Mandates of the Barreau du Québec. Similarly, a notary will register the mandate in the Register of Testamentary Dispositions and the Register of Protection Mandates of the Chambre des notaires du Québec. There are fees associated with engaging lawyers or notaries for this process, which vary by firm.
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De facto unions
In Quebec, a common-law relationship is referred to as a "de facto union". A couple must live together for at least two years to be considered a de facto couple for tax purposes, and at least three years for pension purposes. It is important to note that living together is not always necessary to be considered a common-law couple.
De facto couples do not have the same rights as married couples. For example, in the case of a breakup, common-law couples do not have the same protections as married couples. If the family home or lease is in the name of one person only, the other is not protected by law. Additionally, in the event of the death of one partner, the surviving de facto partner is not legally recognised as the heir and will not inherit anything unless they are named in the will. This is because, in Quebec, de facto partners are not considered heirs.
To prove a de facto union, documentation is usually required, often in the form of a cohabitation agreement. Other documents that may be useful include proof of shared ownership of residential property, or other records of the relationship that can help prove its duration.
It is important to prepare a will to ensure that your partner is provided for in the event of your death, as well as to ensure that your estate is distributed according to your wishes. A will can also reduce the amount of work and stress for your loved ones.
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Common-law vs married spouses
In Quebec, common-law relationships are officially called "de facto" relationships. Unlike married couples, common-law couples are not automatically considered heirs to their partner's estate and are not entitled to anything if their partner dies without a will. In Quebec, married spouses have specific rights to the family or matrimonial home, regardless of whose name is on the title. De facto couples do not have the same automatic rights to the family home or any other property acquired during the relationship.
To be considered a common-law couple in Quebec, it is not necessary to live together. However, for tax purposes, a couple is considered to be in a common-law relationship after living together continuously for at least two years. This requirement remains the same even if the couple has children together.
It is important to note that common-law couples do not have the same protections as married couples in the event of a breakup. For example, common-law couples do not benefit from the protection of the family residence if ownership of the home or the lease is in only one person's name. Additionally, married spouses have rights to medical decision-making for their partner, especially if the partner is incapacitated. De facto partners may find it challenging to prove similar decision-making authority without formal legal documentation.
To ensure that common-law partners are protected in the event of a death or breakup, it is important to create a will and other legal documents. A will can be used to choose who will inherit from the estate and what share they will receive. Additionally, a protection mandate can be prepared to give instructions on how an individual wants to be cared for and how their finances should be managed if they become unable to make decisions for themselves.
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Frequently asked questions
A common-law relationship is when two people make a life together without being married. Quebec law officially calls these couples “de facto” couples or a “de facto union”.
In Quebec, a couple must live together for at least two years to be considered a de facto couple for tax purposes, and at least three years for pension purposes.
Common-law couples in Quebec have the same rights and obligations as married couples in the case of federal and provincial income tax, tax programs such as registered retirement savings plans (RRSPs), and tax-free savings accounts (TSFAs).
De facto couples do not have the same property rights as married couples. Married spouses have specific rights to the family or matrimonial home, regardless of whose name is on the title.
In Quebec, a common-law spouse is not considered an heir and is not entitled to anything if their partner dies without a will.
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