Life as a common-law couple in Quebec

Saturday, 01 June 2013
Hélène Marquis considers the impact of the Supreme Court of Canada’s decision in Eric v Lola

Now that the legal saga of Eric v Lola is over, the public debate begins. What rights do common-law partners have? What obligations do they have to each other? Is it the government’s role to insist that an economic union be formed every time couples decide to live together? These issues must be reflected upon to define the family of the future.

I will leave it to the knowledgeable legal and constitutional experts to comment on the Court’s decision. Instead, I will discuss the immediate, practical impact of the decision.

In its wisdom, and despite the many subtleties in the dissenting views, the Court left Quebec law intact with regard to the maintenance obligations of common-law partners and the division of household property.

Currently, all couples, including same-sex partners, are free to choose their family model. They can opt for the formality of a legal marriage, or for a common-law marriage. Federal and provincial tax legislation and certain social laws and private contracts, such as some group insurance contracts provided by employers, recognise the status and rights of both married couples and common-law partners.

This legislation and these contracts share the requirement that couples identify themselves as ‘common-law partners’ from among their various definitions.

The Civil Code of Quebec sets out the rights of married people and those in civil unions, and the obligations they have towards each other. This is not limited to economic considerations. Many are related to lifestyle choices. Therefore, spouses must respect, be faithful, be helpful and be there for each other. They choose their family residence together and to live their lives together. They must contribute to the demands of marriage in proportion to their respective capacities and each other’s abilities.

On separation, divorce or death, they will have the right to obtain support payments for themselves, and may claim their rights to the household property in accordance with the applicable matrimonial regime and the rules regarding division of family patrimony. With or without a will, they can inherit in a proportion provided for by law. These rights and obligations do not apply to common-law couples living in Quebec.

It is a myth that living together for three years constitutes marriage. Generally, the Civil Code does not give legal status to common-law partners, regardless of the number of years that they have lived as common-law partners or whether or not they have children together. It considers their marital status as ‘single’.

Given that common-law partners are ‘single’ in the eyes of the law, they are not bound by any of these obligations. They must draw up a cohabitation contract, a mandate in the event of incapacity, and a will, to set out their wishes. The contract becomes binding for the partners. It is helpful while they live together and at any time sensitive decisions are made. It will also serve as a guide for the division of property in the event of a break-up. As long as they do not contravene legislation or accepted standards of behaviour, all clauses that are in line with the partners’ situation can appear in that contract. A few examples: the terms of the administration of property and the division of expenses, support payments, division of property and use of the family residence in the event of a separation.

When the partners die, a proper will is required if they want to bequeath their property. Co-ownership in the Civil Code does not provide for right of survivorship. For example, if the family residence is co-owned 50/50 by the partners and one of them dies without leaving a will, the surviving partner still owns only 50 per cent, and becomes co-owner with the deceased’s children or parents.

Organising life as a couple is a process that takes time. It is important to be familiar with the laws and, above all, to call on qualified professionals to make informed decisions. This advice is not only for common-law partners, but also for couples in a formal union.

Author block
Hélène Marquis

Hélène Marquis TEP is Regional Manager of Wealth Advisory Services at CIBC Private Investment Counsel.

The content displayed here is subject to our disclaimer. Read more