Staying in the Home After a Common-Law Breakup in Newfoundland and Labrador

If your name is not on the title or the lease, a breakup can feel like it puts your housing in someone else's hands. You may be wondering whether you can stay, for how long, and whether you have any claim at all.

The honest answer is that it depends on how the home is held, how long you lived together, whether you have children and whether anything has been signed. This article explains the general framework in Newfoundland and Labrador so you know what to ask about.

This article covers the law of Newfoundland and Labrador.

Why the answer depends on your situation

How this applies depends on your situation, so it is worth confirming with a lawyer. What you can do usually turns on a few practical questions.

• Who owns the home, or whose name is on the lease.
• Whether the two of you signed a cohabitation or separation agreement.
• Whether a court has made any order about the home.
• Whether children live in the home with you.
• How long you lived together as a couple.

If you rent, the landlord's rights and the terms of the lease also matter, and that is a separate question from your rights against your former partner. A lawyer can look at your documents and tell you where you stand.

What the matrimonial home rules cover

Under the Family Law Act, the matrimonial home is the dwelling occupied by the spouses and owned by either or both of them. Each spouse has the same right of use, possession and management of it, and a court can give one spouse exclusive possession on application.

Those rules are written in terms of spouses. The Act defines a spouse as a married person, or a person in a void marriage entered in good faith who is cohabiting or has cohabited within the preceding year. Common-law partners are covered separately by the 'partner' definition.

Because of that difference, you should not assume the matrimonial home protections apply to you as a common-law partner. Whether and how they might help you is a question to confirm with a lawyer who can look at your facts.

Who counts as a partner

Under the Family Law Act, a partner is one of two persons who cohabited in a conjugal relationship outside marriage for at least 2 years, or at least 1 year if they are together the biological or adoptive parents of a child.

Other laws use different thresholds. For example, under the Pension Benefits Act, 1997, a cohabiting partner is someone who cohabited continuously in a conjugal relationship for not less than 3 years where the member has a spouse, or 1 year where there is no spouse. So being a partner for one purpose does not automatically make you one for another.

Claims you may have as a common-law partner

Even if you cannot count on staying in the home, you may have other claims. These are the main ones the law points to.

The 2-year limit is the one people most often miss. Waiting to see how things settle can use up time you cannot get back.

Children and agreements

If you have children, parenting is a separate question from the home. The father and mother of a child are equally entitled to custody, subject to the other provisions of the Children's Law Act, and anyone with custody must act in the child's best interests. If a child lives with one parent with the other's express or implied consent, the other parent's right to exercise custody is suspended until an agreement or order provides otherwise, but access rights are not suspended.

People who have cohabited in a conjugal relationship and are living separate and apart may enter into a separation agreement. Like other domestic contracts, it is unenforceable unless it is in writing, signed by the parties and witnessed. A signed agreement on a matter the Act also covers generally prevails over the Act's default rules.

A court may set an agreement aside if a party failed to disclose significant assets or debts, or did not understand its nature or consequences. Read any agreement carefully and get advice before you sign, especially one that asks you to leave the home.

What to do next

• Write down the date you and your partner separated, since the 2-year support limit runs from that day.
• Gather the title, lease, mortgage and utility documents, and anything showing how long you lived together.
• Do not sign anything about the home or support until you have had it reviewed.
• Keep records of what you contributed to the household, including money, work and caregiving.
• Book a time with a lawyer to confirm how the partner rules apply to you.

If there is any concern for your safety, put that first and ask for help right away. A lawyer can also tell you which court to use for your situation.

Frequently asked questions