Can Common-Law Partners Get Spousal Support in New Brunswick?

If you lived with a partner without being married and you are now separating, you may wonder whether you can ask for support. The answer in New Brunswick is sometimes yes, but it depends on how long you lived together and whether you share a child.

This article explains the two situations in which the law treats a common-law partner like a spouse for support, what support is based on, how orders are collected, and how property is treated differently. It is general information, not advice about your own case.

This article covers the law of New Brunswick.

Who counts as a common-law partner

Under the Family Law Act, a common-law partner is a person who cohabits in a conjugal relationship with another person without being married to them. Living together as roommates is not enough; the relationship has to be conjugal.

Spousal support questions between unmarried partners in New Brunswick are dealt with in the Court of King's Bench, Family Division, which hears Family Law Act matters such as parenting and support.

The two ways a common-law partner can qualify

The starting rule is that every spouse has an obligation to provide support for themselves and for their spouse, in accordance with need, to the extent capable of doing so. That obligation is extended to common-law partners in two situations.

If you meet neither description, the support obligation set out in the Act may not apply to you. Whether a relationship was continuous, or whether dependence was substantial, are questions of fact that depend on your circumstances and are worth confirming with a lawyer.

What support is based on

Support is tied to need and to the other person's ability to pay. Qualifying for support does not mean you will automatically receive it, and the law does not set a fixed amount or length of time for spousal support in the material here.

The Divorce Act factors, such as the length of cohabitation and the functions each spouse performed, apply to spouses in a divorce proceeding. Because common-law partners are not divorcing, you should ask a lawyer how a court is likely to approach your claim under the Family Law Act.

If you already signed an agreement that waives support, it may not be the end of the matter. The Court may set aside a support provision or a waiver of the right to support in an agreement where it results in unconscionable circumstances.

Support is separate from property, and from parenting

Many people assume that common-law partners share property equally after a separation. In New Brunswick, the equal-division rule applies to spouses, meaning married persons, so a common-law partner does not get automatic equal division of the home or other property.

Instead, common-law partners must rely on unjust enrichment or constructive trust, or negotiate a settlement. Unjust enrichment is the main route for dividing property after an unmarried relationship ends, and living together alone does not create an entitlement to a share.

Parenting is also its own question. The Family Law Act uses the terms decision-making responsibility and parenting time in place of custody and access.

Getting and collecting support, and what to do next

Support orders made in New Brunswick are automatically filed with the Office of Support Enforcement, and the recipient has eight days after the documents are sent to opt out and receive payments directly. Enforcement tools escalate with non-payment and can include garnishing wages, pensions, tax refunds and bank accounts. A certificate filed with the Court becomes a judgment that may be enforced as one.

• Write down the dates you started living together, any breaks, and when you separated.
• Note whether you have a child together.
• Gather records of income, expenses, debts and who paid for what in the household.
• Keep any written agreement you and your partner signed.
• Talk to a lawyer promptly about whether you meet either route and what to claim.
• If you are not safe, an Emergency Intervention Order may be available, and the law covers people in dating or conjugal relationships whether or not they lived together.

Frequently asked questions