The De Facto Union

LOVE WITHOUT THE FORMALITIES

Customs change. Today, many couples decide to live together without getting married. Uncertain about their choice, disillusioned by a previous marital union or simply opposed to any commitment, the number of couples living in common-law relationships continues to increase. Are you one of them? Are you wondering about the legal consequences of your situation? First, you should know that three, five or even twenty years of cohabitation do not grant you the legal status of a married person.

I HAVE HEARD ...

Despite anything you may have heard, the following statements are false:
False: The property that my common-law partner purchases will be separated half and half in the event we break up.
False: If we have a child together, we need to adopt it to establish a filial bond.
False: All property automatically accrues to me upon the death of my common-law partner.
And these are just some of the false assertions about common-law unions.

MY HOUSE, YOUR HOUSE OR OUR HOUSE?

It should be remembered that the right to protection of the family residence provided for in the Civil Code of Québec, as well as the compulsory division of the family patrimony, applies only to legally married couples.

Thus, a common-law partner who owns the family home may sell or mortgage it without the consent of the other.

If the couple breaks up, the owner alone will keep the use of the residence. The owner will also have the right to sell it without having to share its value with the other.

If you intend to acquire a residence, why not do it in the form of co-ownership by indivision (i.e., both names appear on the deed of purchase)?

When you are both owners, you will have effective protection and will be able, during the resale of this residence, to have a share of the added value gained during the union.

CHILDREN: ALL EQUAL BEFORE THE LAW

A child born in a common-law relationship has the same rights and obligations as a child born in a marriage. So there is no need for adoption.

As with any other child, you can choose to give the mother’s name, father’s name or a combination of the two.

IN CASE OF INCAPACITY

What happens if you temporarily or permanently lose your intellectual faculties ... If you become unfit to take care of yourself or administer your belongings?

In such a case, it will be reassuring for your entourage to know that you have appointed your common-law partner or any other person of your choice to act as your mandatary by drawing up a mandate in the event of incapacity. In the event of your incapacity, your mandatary can represent you legally and make important decisions concerning you.

See the leaflet by the Chambre des notaires on the mandate given in anticipation of the inability.

NO ONE LIVES FOREVER

Even if you spend your whole life with a common-law partner, it will not make you his legal heir upon his death.

The most elementary caution therefore suggests that de facto spouses wishing, in the event of death, to benefit their companion or life partner should make a will to this effect. In the absence of a will, the family of the deceased will receive his property in accordance with the provisions of the Civil Code of Québec.

In addition, to receive your common-law partner’s life insurance proceeds, your common-law partner must have previously named you beneficiary in writing, on the insurance policy or by a will.

WHAT IF THE COUPLE BREAKS UP?

A de facto spouse without financial resources is not entitled to alimony in the event of the couple breaks up. Child support, however, may be claimed on behalf of any children born of that union.

In addition, even if the parents live separately, they continue to exercise joint parental authority over their children. There can therefore be no objection, unless there are serious reasons, to the right of access and visits.

As to the division of the property accumulated during the couple’s life together, if there is no prior agreement between the parties, everything will be done according to the proof of ownership of the property. Hence the importance for the spouses to retain the documents which can establish ownership of the property acquired during the union by each of them.

COMMON-LAW PARTNERS’ RIGHTS: IT DEPENDS ON APPLICABLE LAWS 

Some laws, especially those of a social nature, place married people and people in common-law relationships (whether opposite-sex or same-sex) on an equal footing. Each of these laws establishes its own criteria for recognizing certain legal effects of common-law relationships (length of cohabitation, existence of a child, etc.).

However, we canot draw a general conclusion. For example, the Quebec Automobile Insurance Corporation recognizes, under certain conditions, the right of the common-law partner to compensation following the death of the other in an automobile accident. However, the survivor does not inherit the property of the deceased if the deceased did not leave a will to that effect.

WHILE ALL IS GOOD

Your notary has the expertise to inform you and advise you judiciously about your current situation. He can tell you about the civil and fiscal consequences of your union.

If necessary, he or she will suggest that you enter into an agreement, such as a notarized contract setting out in black and white the rules you wish to adopt to govern your relationship.

Such a contract can be of any length, depending on the topics you intend to cover. It is you, with the help of your notary, who determines the content.

For information purposes only, here are some of the provisions that may be included in a de facto union agreement:

• The establishment and ownership of the common residence
• Administration and disposition of property during joint life
• The donation of furniture and other property
• The fate of the common residence in case of break up or death
• Establishing the right to support between common-law partners in the aftermath of a break up
• The sharing of certain assets as a result of a breakup

WHEN IT’S ALL PLANNED OUT

You will avoid painful discussions and unnecessary friction when, if ever you decide to split up, you can fall back on an agreement reached in better days.

Source : Chambre des notaires du Québec (Translation)