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Valentine’s day is for lovers: de facto spouses, or common-law partners in quebec: how can they be protected?

Categories:

Divorce Lawyer, Family law

Jennifer from Laval asked us the following question:

“I have been with my boyfriend for three years, we will be moving in together and we decided that we do not want to get married. However, I am questioning what I can do to protect myself in this relationship.”

Jennifer more and more people in Quebec are living in “common-law” relationships and have foregone marriage. They are also known, legally, as “de facto spouses.” Even today, many people in Quebec believe that common-law partners have the same rights and obligations as married spouses.

This is untrue and our present laws do not protect and confer to common-law partners the same protection as married couples. “Common-law marriage” does not exist in Quebec. It exists in many other jurisdictions, including England, the other 9 Canadian provinces and 49 US states (Louisiana excluded).

It is important, as common-law spouses, at the beginning of your relationship and when you move in together, that a document is drafted between yourself and your partner, taking into consideration how the assets will be partitioned at the time of separation, and the partition of the expenses during your common-law relationship. Your agreement should also be drafted with a view to an eventual, possible separation, to decide if a common-law partner would be allowed or would be provided with alimentary spousal support, and who would be responsible for the debts during the common-law relationship as well as after the common-law relationship, among other subjects.

This document would have to be signed by both spouses. Although it is not necessary for the contract to be drafted by or signed in front of an attorney or a notary, it is preferable that it would be prepared by a legal counsel so that each party would be able to have the opportunity to understand the consequences of the signature of the said contract.

Without a common-law contract, the assets will be partitioned according to the general rules provided by the Civil Code of Quebec.

It is also important, when you are living a common-law relationship, that each spouse has a will prepared in order to protect the other spouse.

It is important to note that, if a spouse dies without a will, the common-law partner has no protection in virtue of the Civil Code of Quebec, seeing that the legal heirs of the deceased are a spouse by marriage, and their descendants and their ascendants, but not an unmarried, common-law spouse.

Therefore, without a will or without being married, even though you have been living with your partner for many years, at the time of death you would not be considered as a spouse in order to participate in the estate.

It is therefore very important to know your rights and obligations resulting from a common-law relationship and that each party enters the relationship with all the necessary information in order for each party to protect themselves in case of an eventual separation.

Gianina Fuschini, Attorney-at-Law
Alepin Gauthier Avocats inc.

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