Cameron Miranda
A statutory declaration of common-law union is a legal document that serves as evidence of a common-law partnership between two individuals. In Canada, common-law unions are recognised as a form of marriage, and common-law partners are entitled to the same rights and benefits as married couples. The statutory declaration is typically a sworn statement signed in front of a notary public or another authorised official, and it includes personal details about both partners, such as their names, addresses, and dates of birth. It also outlines the duration of their relationship, stating when they began living together, and confirming that they have been in a committed relationship for at least a year. This document is often used for immigration purposes, to enable an individual to sponsor their partner to come to Canada, but it may also be used to access certain benefits and rights only available to married or common-law partners, such as pensions, health care, or tax advantages.
| Characteristics | Values |
|---|---|
| Purpose | To prove the existence of a common-law relationship |
| Who it applies to | Couples who live together in a marriage-like partnership but are not legally married |
| Legal status | Common-law unions are recognised as a form of marriage in Canada |
| Rights and obligations | Common-law partners have the same rights and obligations as married couples |
| Evidence | The form must be signed by both partners and notarized |
| Information required | Names, addresses, dates of birth, duration of relationship, and any relevant information establishing the authenticity of the common-law status |
| Supporting evidence | Joint bank account statements, shared lease agreements, utility bills in both names, affidavits from friends and family |
| Benefits | Immigration, pension, health care, tax advantages, property division, spousal support, inheritance claims |
| Legal consequences | Making a false statement is considered perjury and is a criminal offence |
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What You'll Learn
Common-law status in Canada
In Canada, common-law status refers to whether a person aged 15 or over is living with a person of the opposite sex or the same sex as a couple but is not legally married to that person. It includes situations where the members of a couple are living apart temporarily due to illness, work, or school.
A Statutory Declaration of Common-Law Union is a legal document that provides evidence of a common-law relationship between two people. It helps establish the authenticity, duration, and nature of their relationship. The couple makes a solemn statement verbally before a notary public, then signs the declaration in their presence. The document confirms that a couple has been living together for at least a year in a committed relationship, similar to a marriage, but without a marriage certificate.
To be considered common-law federally in Canada, a couple must live together in a conjugal relationship and not be married. One of the following conditions must also be met: they have been living in a conjugal relationship for at least 12 continuous months (this can include a separation period of less than 90 days), or their partner has custody and control of their child, and the child is wholly dependent on them for support. Additionally, the couple must demonstrate proof of their shared life, which includes confirming whether they have joint financial accounts, property ownership, or life insurance policies.
Common-law status enables couples to access benefits and rights available only to married or common-law partners. For example, common-law couples may be treated the same as married couples for income tax purposes and have access to certain tax credits and perks. However, they may also lose some benefits received as single people. Common-law partners generally don't have automatic rights to property and assets after a separation, and support obligations and the division of assets may differ from those in a marriage.
It is important to note that the criteria defining common-law relationships can vary across different provinces in Canada, especially in the context of estate planning. For instance, in Ontario, a couple is generally recognized as being in a common-law relationship after cohabitating for three continuous years, but this duration is reduced if the couple has a child together.
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Benefits and rights of common-law partners
A statutory declaration of a common-law union is a legal document that establishes a couple's common-law relationship for various purposes, including immigration, benefits, and property rights. It is particularly relevant when an individual wants to sponsor their partner to come to Canada.
Common-law partners who submit a statutory declaration can access certain benefits and rights available to legally recognised couples. These include:
- Immigration benefits: The IMM 5409 form is used to establish a common-law relationship for immigration purposes. It allows common-law partners to be recognised as family members for sponsorship applications, visas, and other immigration procedures. For example, skilled workers' spouses can get an open work permit.
- Tax purposes: Common-law partners can declare their union under the Canadian Income Tax Act.
- Parental rights and hospital access: Common-law partners can have decision-making rights for each other in hospitals.
- Employee benefits: Common-law partners may be eligible for certain employee benefits.
- Property rights: Common-law partners may have equal rights to a jointly purchased home. However, the partner who contributes more to the purchase price or mortgage payments may have a greater claim.
- Financial rights and obligations: Common-law partners may be entitled to financial support from each other in the event of a separation.
- Dispute resolution and legal recourse: Common-law partners have legal recourse in the event of disputes.
It is important to note that the specific benefits and rights available to common-law partners may vary depending on the province or territory in Canada, as family law falls under provincial law.
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Sponsorship and immigration
A statutory declaration of a common-law union is a legal document that serves as evidence of a common-law relationship. By submitting this declaration, a couple affirms that they have been living together continuously for at least one year in a committed relationship, akin to marriage but without a formal marriage certificate.
In Canada, the statutory declaration of a common-law union is known as Form IMM5409 or IMM5409E. It is requested by Citizenship and Immigration Canada (CIC) when an applicant wants to include a common-law partner in their immigration-related applications. The form can be used for applications for immigration based on family, visas for temporary residence, and extensions of visas.
To complete the form, both partners must fill out the top parts of the form separately, indicating their shared address as a couple. Each partner is a Declarant in Box 5 at the bottom of the form. The form is then signed separately in different locations in front of different officials, such as a commissioner for taking affidavits or a notary public. The partners can then submit both copies with their application. It is not essential that the dates of signing are the same.
Along with the form, applicants must provide evidence of their committed and genuine relationship. This can include documents such as joint bank accounts, mortgages, tax returns indicating a declared common-law relationship, and life insurance plans naming their partner as a beneficiary. It is important to note that it is a criminal offence to make a false statement in a statutory declaration.
The statutory declaration of a common-law union is, therefore, an important tool for individuals in common-law relationships who are seeking to include their partners in their immigration applications or sponsorship forms.
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Taxation and financial considerations
In terms of taxation, a statutory declaration of a common-law union can be used to declare common-law status under the Canadian Income Tax Act. This allows couples to access tax advantages and benefits that are typically available to married couples. For example, common-law partners may use the declaration when claiming spousal support or tax benefits that are available to legally recognised couples.
Financial considerations also come into play when applying for government benefits, such as pensions, healthcare, or tax advantages. The statutory declaration may be required to prove the common-law status of a partner, especially as common-law relationships typically lack the formal documentation associated with traditional marriages. By providing this declaration, couples can access benefits and rights that are available to married or common-law couples, such as property division or inheritance claims.
Furthermore, the statutory declaration can be used to establish financial obligations and shared responsibilities within the relationship. This includes confirming whether the couple jointly owns property, has joint bank accounts, or has declared joint financial accounts. This financial aspect of the statutory declaration is crucial in solidifying the recognition of a common-law union and ensuring that both partners have equal rights and obligations.
Overall, the statutory declaration of a common-law union is a powerful tool that enables couples to access the same financial and taxation benefits as married couples. By providing legal evidence of their relationship, common-law partners can enjoy the rights and protections afforded to married individuals while maintaining their unique relationship dynamics.
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Notarization process and requirements
The notarization process and requirements for a Statutory Declaration of Common-Law Union involve several steps and specific details that must be fulfilled to establish the authenticity and duration of a common-law relationship. Here is an overview of the process and requirements:
Notarization Process:
- Information Provision: The couple must provide personal and relationship details. This includes full legal names, current addresses, dates of birth, the length of their common-law relationship, and the date they started living together. They also need to disclose evidence of their shared life, such as joint financial accounts or a shared lease/mortgage.
- Solemn Declaration: Both partners must make a solemn statement, verbally affirming that the information provided is true. This declaration is made before a notary public or commissioner of oaths, who is authorized to administer oaths and statutory declarations.
- Signature Witnessing: After the solemn declaration, each partner signs the declaration in the presence of the notary public or commissioner of oaths. The official witness verifies the signatures.
- Identification Verification: The notary public or commissioner of oaths verifies the identity of both individuals making the declaration.
- Understanding Confirmation: The official confirms that both individuals understand the contents of the statutory declaration.
- Certification: The authorized official provides their full name, signature, and official stamp to certify the declaration's validity and authenticity.
- Commissioning: The final step involves commissioning the document, which can be done online through services like NotaryPro, saving time and avoiding the need for in-person appointments.
Notarization Requirements:
- Authorized Official: Ensure that the chosen notary public or commissioner of oaths is authorized to administer oaths and statutory declarations. Not all notaries public are authorized for this purpose.
- IMM 5409 Form: The Statutory Declaration of Common-Law Union typically uses the IMM 5409 form, which is recognized by Citizenship and Immigration Canada.
- Fee: A fee is typically charged for notarization services, and the cost can vary depending on the chosen notary public. It is advisable to research and find a reputable notary with reasonable fees.
- Representative Form: If using an immigration consultant or representative, a "Use of a Representative Form" must be completed.
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Frequently asked questions
It is a legal document that serves as evidence of a common-law partnership between two individuals.
It is a type of partnership recognised by Canadian law. It is defined as a relationship between two people who have been living together for a significant amount of time (typically one to three years) and are not legally married.
It is used to declare that two people are in a common-law partnership and to provide evidence of their relationship. It helps establish the authenticity, duration, and nature of their relationship.
It is required when proof of the relationship is needed for legal, financial, or administrative reasons. For example, when applying for government benefits, asserting rights in legal matters, or immigration applications.
The couple makes a solemn statement verbally before a notary public, confirming the information provided is true. Then, they sign the declaration in the presence of the notary public, who confirms their identities and witnesses their signatures.
