It’s a common misconception that common-law partners have the same rights and obligations as married spouses. However, as with most provinces in Canada, this is not the case in New Brunswick.
In New Brunswick, while the property rights of married spouses are regulated by legislation, Judge made law governs the rights of common-law partners.
So what happens to property when common-law partners separate? Unlike married couples, common-law partners are not automatically entitled to share in the property accumulated during the relationship, unless they jointly hold the title. Otherwise, a common-law partner must prove his or her contribution towards any property in order to be entitled to a part of it. If the contribution is proven, then the non-owning spouse will be entitled to a share that reflects the extent of that contribution. The contribution may be purely monetary or based on time and effort put forth.
Courts tend to separate property accumulated during a common-law relationship in the fairest way possible by applying an “unjust enrichment” test. This basically allows the Court to ensure each common-law partner does not receive more than their fair share upon the breakdown of their relationship.
Are common-law partners obligated to pay child support upon separation?
In New Brunswick, child support payments are determined by the Federal Child Support Guidelines and are calculated based on a number of considerations including the parents’ incomes, the number of eligible children and the custody arrangement (i.e. shared custody, sole custody, etc.). This means that a parent is obligated to pay child support based on the Federal Child Support Guidelines regardless of whether they are married to the other parent or not.
The New Brunswick Family Services Act also outlines certain situations where an individual would have to pay spousal support to an ex common-law partner to the extent he or she is capable of doing so. These situations include:
when partners have continuously lived together for a period of three years and one of them has been substantially dependent upon the other for support; or
when partners have continuously lived together for a period of one year and have a biological child together.
Protecting Your Rights
Common-law relationships are becoming more and more prevalent. But a relationship breakdown can lead to uncertainty about property rights.
It is wise for common-law partners to sign a cohabitation agreement when they decide to move in together. This could help to avoid a bitter separation and, in turn, a stressful Court hearing to prove how much each partner contributed to the acquisition of property accumulated throughout the term of the common-law relationship. Without proper documentation, it can be hard to keep track of and prove those contributions.
A cohabitation agreement is a written contract that describes who owns what, how any property would be divided, and how any support obligations would be dealt with in case of relationship breakdown. It’s a good idea to consult a family lawyer before entering into a cohabitation agreement as specific formal requirements are necessary in order for the agreement to be legally binding and recognized in a Court of law.
Amélie Surette obtained a Bachelor of Arts degree in Psychology (BA) as well as a Juris Doctor degree (JD) from the Université de Moncton. She is currently completing her articles with Ellsworth Johnson & Partners and plans to practice in the area of Family Law upon her admission to the New Brunswick Bar in June, 2018.