By Daniel Romano
The term “common-law spouse” has a number of definitions. We focus here on couples considered to be legally married, without ever having had a formal marriage ceremony.
In most jurisdictions, common-law spouses have the same rights as formally married couples.
The most frequent question we are asked is: “How long can we live together before we are legally considered to be common-law spouses”? In the rest of Canada, the number varies between two and three years. In most of these cases, the time is shortened if you have a child together.
Common-law marriages are not officially recognized in Quebec. This means that no matter how long you live with someone or how many children you have together, you will not be considered married unless you actually “get married”! If you separate, neither person can claim spousal support or a division of assets or of the family patrimony as in a regular divorce. The rights of children are unchanged, however. Children always have an equal right to support, regardless of the status of the biological parents. Unless there is a formal adoption or undertaking to do so, the common-law spouse in Quebec will not be held liable to pay child support, no matter
how long that person acted as a parent to the child.
In 2013, the Supreme Court of Canada decided that this practice is not discriminatory because the disadvantage does not perpetuate a prejudice or stereotype and therefore does not violate the right to equality as guaranteed in the Charter. The Court was of the opinion that the days when common-law spouses were treated with legislative and social hostility are long past.
Since so many people in Quebec live together as spouses without getting formally married, laws have been created to address the issue. Common-law couples are referred to in Quebec as de facto spouses and can receive special consideration in the following specific circumstances:
• Providing consent to care on behalf of a spouse who is incapacitated
• Granting a life annuity to a spouse
• Obtaining benefits from a Quebec Pension Plan
• Assuming a residential lease after the death of a spouse
• Instituting a regime of protective supervision such as tutorship or curatorship
• Equal tax benefits to de facto spouses who have cohabitated for one year
• Equal recognition in insurance matters, under the Automobile Insurance Act, and in application of the Savings and Credit Unions Act
• Specific limited circumstances in the Code of Civil Procedure and in recent jurisprudence allows a spouse to make a claim for spousal support and a share of the family patrimony
• De facto spouses can also draft a contrat de vie commune signed before a Notary, and thereby stipulate additional rights and obligations
The concept of common-law is evolving, both socially and legally. Although common-law marriages are not legally recognized in Quebec, there are so many exceptions to the rule that it is no longer accurate to claim that Quebec is especially distinct in this respect.
Daniel Romano is an attorney with KALMAN SAMUELS, a family law firm. Next issue the column will address Child Support for children who are over 18 — How long must I keep paying?
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