In a common law relationship a man and a woman live together, but are not legally married to each other. A common law relationship is not the same as a legal marriage. Partners have more rights and obligations in a legal marriage than in a common law relationship. Some of the differences and similarities between common law relationships and legal marriages are described in this pamphlet. As with any relationship, it is a good idea to know what legal rights and obligations you have. We hope this pamphlet will answer some of your questions about common law relationships.
 

Legal Status

To be married, you must have a recognized marriage ceremony performed by a member of the clergy, a judge or someone else who has been licensed to perform marriages in Prince Edward Island. Contrary to popular belief, no amount of time together - two years, five years, or fifty years - will change a common law relationship into a marriage in the eyes of the law. Being legally married is the only way you can have the rights and obligations of a husband or wife.

Children born to unmarried parents have the same legal status as children born within a marriage. The law no longer separates them into "legitimate" or "illegitimate" children. Parents have the same rights and responsibilities towards their children, whether they are married or not.
 

Family Law Rights and Responsibilities

Family law covers relationships among family members, including members of a common law family. You may have questions about the following areas: spousal support, child custody, visiting rights, child support and property. Consult a lawyer if you need legal advice in any of these areas.

Support for your partner
In a marriage, husbands and wives have a legal duty to financially support each other while they are living together. If the marriage breaks down and they separate or divorce, one person sometimes has to pay "spousal support" to the other (also called maintenance or alimony). This often happens if the person receiving support is not self-supporting. Spousal support is often for a temporary period, usually until the spouse receiving support becomes self-supporting.

When a common law relationship ends spouses have a limited responsibility to support each other. For purposes of support, the law defines spouse to mean a man or a woman who have cohabited "continuously for a period of not less than three years, or in a relationship of some permanence, if they are the natural or adoptive parents of a child". If you meet these requirements and are in need of support, you have a right to make a claim.

Birth of children
The law about the names of children born to unmarried parents is explained in another free CLIA pamphlet called "Names".

Under the law, there are a number of circumstances where a man will be presumed to be the father of a child. These circumstances include living with the child's mother at the time of birth, or if a child is born within 300 days of the couple's separation. If there is a problem establishing who the father is, you should contact a lawyer. A paternity test is sometimes used to prove the paternity of the father.

Adoption
Both the mother and father of the child have to be notified about the proposed adoption of their child and asked to give permission.

Child custody and visiting rights
Fathers and mothers, married or not, are joint custodians of their children while living together. Each has the right to ask for custody of the children if they decide to live apart.  If they cannot agree, Family Court can be asked to decide who should have custody. The court will always consider the best interests of the children when deciding which parent will be given custody.

The parent who does not have custody of the children almost always has the right to have visits with them and to be regularly informed about their health, education and welfare. Parents who cannot agree can ask the court to decide when and how visits should take place.

Child support
All parents are required to financially support their dependent children if they can afford it. This includes a parent who has never lived with the child. Also, you may be ordered by the court to support your partner's child, if you treated him or her as your own.

The amount of child support to be paid by the parent who does not have custody of the children is now calculated using the Child Support Guidelines. These guidelines are support tables based on average amounts spent on raising children at the different income levels. To determine the amount of support to be paid a number of factors are looked at including the level of income of the person paying support, the number of children, the province where the payor lives. The courts follow the guidelines in all cases except when the children have special expenses or one of the parents claims unreasonable hardship.

The guidelines do not apply in cases where there is already an existing order or agreement for child support and both parents are satisfied with the amount being paid. If, however, either parents wishes to have the amount of support changed to the guideline amount it can be done by mutual agreement or by application to the court for a financial variation.

Child support paid before the guidelines were introduced in May of 1997, were taxable in the hands of the parent receiving the payments and deductible by the parent paying. Amounts paid since May 1997 are not taxable or deductible, therefore before applying for a variation you should consult your lawyer or a tax accountant to find out what the net tax result of the change would be to you.

You can obtain a copy of the Child Support Guidelines and other information about child support from CLIA.

Property
The Family Law Act is a law dealing with the property (things you own) of married persons. This includes things like the house, furniture, money, and car. At the time of separation, divorce or annulment, both husband and wife have the right to an equal division (one-half share) of these items. It doesn't matter who paid for an item or if only one name is on the deed or registration papers.

This law does not apply to common law partners. When common law partners separate, the person whose name is on the deed or who has paid for an item may be the only one entitled to it. Recently, the courts have been looking at the property of common law partners more closely than in the past. If you have contributed time or money towards an asset owned by your partner, or if you both intended the item to be jointly owned, the law may now help you to get a share of that asset after separation. If this is your situation, you should see a lawyer.

In order to avoid problems, it is important for common law partners to own assets jointly, to keep accurate records, keep receipts for purchases, or to have a cohabitation agreement.

Cohabitation agreements
One way you and your partner can express rights and obligations towards each other and your children is by signing a "cohabitation agreement". This can include such things as ownership of property, a division of property if separation occurs, support obligations towards each other and the right to make decisions about the education and moral training of the children. Custody and visiting rights to the children after separation cannot be included in a cohabitation agreement.

To be legally binding, the agreement must be in writing and signed by both you and your partner and by a witness. As with all legal agreements, it is best to have a lawyer write it for you. If you marry your partner after signing a cohabitation agreement, the agreement is then considered to be a marriage contract.

Settlement of family law problems
If you and your partner separate, you will want to have a legal settlement of your affairs. You can decide together (with help from your lawyers and, if you wish, from a mediator) about who should have custody, how much child support should be paid, when and how visits will take place, and how to divide your property.

Again, to be legally binding an agreement must be in writing (best done by a lawyer) and signed by both you and your partner and by a witness. If you cannot agree, either one of you may ask the court to order a settlement.
 

Other Rights and Responsibilities

Your rights and responsibilities in other areas, such as inheritance, pensions and other benefit programs, are also affected by your marital status.

Inheritance
It is important for you and your partner to have wills to protect each other and to make plans for your children. If you do not have a valid will when you die, there are provincial laws which say what must happen to the things you own at your death (your "estate"). Your estate will be given to your closest relatives, including your legal husband or wife if you have one. A common law partner is not recognized as one of your heirs when there is no will. Your children, though, are included.

The law does offer some help if your partner dies without making adequate provision for you or the children, whether there is a will or not. The court can be asked to order  the estate to provide support for a child or a for a partner. The partner must have been a dependant of the deceased for at least three years.  This must be done quickly, so it is important to get see a lawyer about this as soon as possible after the death.

Pensions
Pension plans often give money, called "survivor benefits", to a husband or wife when the person who contributed to the plan has died. Some plans will give survivor benefits to a common law partner. This depends on the pension. Many private pension schemes which are operated by unions or businesses do not recognize common law relationships and will not pay benefits to surviving common law partners.

Government plans such as the Canada Pension Plan, Canadian Forces Superannuation, War Veteran's Allowances, and Old Age Security do recognize common law relationships but only when certain requirements are met. The particular requirements of each plan vary and depend on factors such as the length of the relationship, and whether there is also a husband or wife. Often a common law partner must submit a special claim for benefits while a husband or wife may be granted these benefits automatically.

Check the requirements of private and government pension plans carefully to see if your common law partner will be covered. Sometimes special forms need to be filled out or steps taken to prove the nature of the relationship while you are alive.

Workers' Compensation
Under the Worker's Compensation program, payments may be made to the nearest relatives of someone who has died from an employment-related injury. A common law partner will be eligible only if the relationship has lasted for five years (or two years if there are children) and if there is no husband or wife.

Taxation
Revenue Canada says a common law partner is a "spouse" if you have been living together for at least 12 months. This also applies if you have a child (or children) together. Check with Revenue Canada and your accountant for exact details.

Legal Actions
Although a married person generally cannot be forced to testify against his or her spouse in most criminal cases, a common law partner can be required to testify.

Under the Fatal Accidents Act, a married spouse can sue a person who caused the death of their husband or wife in an accident. If you were a common law spouse and were dependent on the deceased for support, you have the same right. Your children can sue as well.

Debts
You are not responsible for your common law partner's debts unless you have co-signed for them or have signed a contract agreeing to pay for them.

Life Insurance
You can benefit from a common law partner's life insurance policy if you are specifically named as the beneficiary. If the policy is payable to the "wife" or "husband", you cannot  collect the proceeds.

Other Benefits
Many health and dental plans will cover a common law spouse and children. Check your plan for specific information.

Social Assistance
Members of a common law relationship will be considered one family if you apply for social assistance. The income and expenses of both partners will be assessed and benefits will be paid to the family as a unit, not as two single people.

Human Rights
The provincial human rights law forbids discrimination in employment, in accommodations, or in providing goods or services because of marital status. If you feel you have received different treatment because you are in a common law relationship, contact the Human Rights Commission. Its toll-free number is 1-800-237-5031.

The Canadian Charter of Rights and Freedoms also forbids discrimination in laws and government actions. Although discrimination because of marital status is not specifically mentioned, most experts feel this is covered by the Charter.

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This information has been prepared by the Community Legal Information Association of Prince Edward Island, Inc. It contains general information about common law relationships. It does not, however, cover all areas of the law on this issue. As changes occur in law, the information in this pamphlet may go out of date.

This pamphlet is not meant to provide legal advice. If you have a legal problem contact your lawyer. If you do not have a lawyer, call the Lawyer Referral Service at 566-1666. The Lawyer Referral Service provides a half-hour appointment with a lawyer for $10 plus tax.

Community Legal Information Association of Prince Edward Island Inc. (CLIA) is a charitable organization funded by the Department of Justice Canada; Community Affairs and Attorney General, PEI; the Law Foundation of PEI; and other funding sources. CLIA provides Islanders with useful, understandable information about the law and our justice system. You may support the Association by volunteering, becoming a member or by making a donation.

charitable registration number: 118870757RR 0001

Second edition, revised by Mehmuda Mohamed-Hashi
ISBN 0-921896-97-2
May 1998