Valentine’s Day is once again around the corner and cupid is readying his quiver. But what happens when love doesn’t lead to marriage? If you and your spouse are in a committed common law relationship, there are some important documents you’ll need to protect yourself and your partner form the uncertainties of life.
Québec leads the country in the proportion of common law couples and has for a long time now. The 2021 census showed that Québec is home to 43% of Canada’s common law couples – a disproportionate share relative to the size of our population – but it also confirmed that the trend is growing across the country. Canada has the highest share of couples living in common law relationships in the G7.
There are legal protections that married couples benefit from in Québec such as the right to inherit all or a portion of the spouse’s assets if the other dies without a will, and the obligation to pay spousal support if the relationship breaks down. De Facto couples, the correct legal term in Québec for common law relationships, do not benefit from these protections.
In a formal marriage in Québec, there are clear rules about the partition of the primary lifestyle assets, known as the Family Patrimony: The family house, the family car and retirement account and pension assets accumulated during the marriage all get split down the middle if the marriage breaks down. This protects both spouses from a dramatic change in lifestyle if the marriage fails. Sadly, very few common law couples take the time to formalize an agreement for how these assets should be dealt with, often leaving the lower income partner exposed to a nasty surprise if the relationship goes south.
So, what should a Cohabitation Agreement include? Since it is a contract between two people, it can cover a wide range of issues so long as it doesn’t contravene any laws. Here are a few examples of items that are typically included:
- shared responsibilities and contribution of each spouse while they live together.
- a list of property and debts of each person before they started living together.
- how the property will be divided if the partners separate.
- how debts will be repaid if the partners separate.
- if the couple separates, payment of money, such as support payments, to one person (Payments can be made in one lump sum, in regular payments or by giving property to one person.)
- how the contract can be changed if the situation of the partners changes after they separate.
The best practice is to draw up a contract like this with a notary, to make sure the couple’s intentions are properly recorded, and to benefit from their guidance and experience, to ensure the agreement reflects both partner’s wishes.
And while you’re at the notary’s office, it’s a good opportunity to review your wills and mandates or write ones if you don’t have them yet. Since common law spouses don’t have any claim on each other’s assets on death, it’s crucial to have a will in place to protect your common law spouse’s lifestyle if you die.
The same notion applies to your healthcare decisions. If you are not married, your de facto spouse does not have the right to make decisions about your care if you are incapacitated. To protect this right between de facto spouses, a protection mandate is required. This allows you to name your de facto spouse as mandatary to your person and/or to your property as you see fit, to ensure their ability to manage your healthcare decisions and your finances in case something happens.
Finally, you should inquire about the beneficiary named on any pension plan in which you are a participant. The pension law in Québec requires de facto spouses to be in a conjugal relationship for 3 years to be eligible as a spouse for the purpose of survivor benefits. If you have a child together, that period shrinks to 1 year.
These may not be the sexiest conversations to have with your partner on Valentine’s Day, but if you’re in a long-term common law relationship, drafting these important documents is the best gift you can give each other.
Happy Valentine’s Day!