Common-law spouses: protect your rights

Think common-law partners have the same rights as married or civil union couples? Think again!

Times are changing, and more and more couples are choosing to live common-law. In Quebec, de facto spouses are defined as couples who are neither married nor in a civil union, and who are in a conjugal relationship.

As the old adage goes, love is blind, but the reality is sometimes brutal... Despite the depth of their commitment and the length of their lives together, de facto spouses do not have the same rights as married or civil union couples. For example, they do not benefit from the protection of the family patrimony, which ensures that certain assets are divided equally in the event of divorce. This means that the spouse who is the sole owner of the family home or second home will retain its use in the event of separation. He or she will also have the right to sell it without having to share the value with the other spouse, which would have been impossible for married spouses subject to the family patrimony.

An essential document

If you're in a common-law relationship, how can you protect yourself? A key document, the de facto union or cohabitation contract, could save you a lot of trouble. Its main purpose is to avoid disputes in the event of a break-up, disputes that would be both costly and stressful to resolve.

In particular, it sets out how property will be divided if the couple separates: what will happen to the family home; how much each will contribute financially; how responsibilities will be shared; and certain aspects of child custody and visitation rights, even if they are not definitive.

The contract may also provide for compensation in the event of termination, which is particularly relevant when one spouse has been able to enrich himself or herself at the expense of the other. Let's take a common example: often, in order to offer the family a better quality of life, one of the spouses, in agreement with the other, reduces his or her working hours or refuses a promotion. Or one spouse may agree to pay for living expenses, while the other capitalizes on a building of which he or she is the sole owner. In such situations, a cohabitation contract can provide for certain indemnities to be paid to compensate for this enrichment and thus prevent disputes. As the drafting of such a contract is complex, it is preferable to have it drawn up by a notary or lawyer.

Other protective factors

To prevent conflicts, and in addition to the cohabitation contract, de facto spouses should purchase the family home by both signing the notarial deed at the time of purchase. Alternatively, the non-owning spouse could acquire an undivided share from the owner spouse. In this way, by both being owners, they are protected, and at the time of resale, they will benefit from the added value that the family home will have gained during the union.

The will and the mandate of protection are other essential documents. In fact, only a will can allow a de facto spouse to inherit, as otherwise he or she would be considered a complete stranger. Finally, with a mandate of protection, it will be possible to choose your common-law spouse to make decisions for you should you no longer be able to look after yourself or your property.

A few exceptions

However, some social and tax laws give de facto spouses the same rights and obligations as married spouses, which can lead to confusion. Here are a few examples:

• If a de facto spouse dies as a result of an automobile accident, the Société de l'assurance-automobile du Québec recognizes the right of the other spouse to receive compensation if certain conditions are met. However, he or she will not inherit the deceased's property if the latter made no provision for this in his or her will.
• The Régie des rentes du Québec provides that if one de facto spouse dies, the other will be entitled to receive a pension after three years of living together, or after one year if a child is born of their union.
• One de facto spouse may consent to the care required by the other's state of health when the latter is incapable and no mandatary, curator or tutor has been appointed.
• Children of common-law couples have the same rights and obligations as children of married couples. Common-law partners may give their child the name of either or both parents. As in the case of a married couple, a de facto spouse who has custody of a child may claim child support from the ex-spouse.

But these provisions are the exception rather than the rule. What's more, these laws have their own criteria for recognizing or denying certain legal effects to de facto unions, such as the duration of cohabitation, the birth of a child, and so on.

Every situation is unique! Don't hesitate to consult your notary. He or she will be your best guide and will give you advice tailored to your situation.