What Counts as a Common-Law Relationship in New Brunswick?

If you live with a partner, you may wonder whether the law treats you as common-law. The honest answer is that it depends on which law is asking and on what you are asking for.

New Brunswick does not give common-law partners every right that married spouses have. This article explains the main definitions and where the differences show up.

This article covers the law of New Brunswick.

The basic definition

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. Two ideas are in that wording: living together, and a conjugal relationship, which generally means a marriage-like relationship.

What makes a relationship conjugal depends on the facts of each case. Things people often point to include shared finances, how the relationship is presented to others and how daily life is organized, but a lawyer can tell you how those weigh in your situation.

Support: where length of time matters

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 extends to common-law partners in two situations.

• They have cohabited continuously for at least three years, with one substantially dependent on the other.
• They have cohabited in a relationship of some permanence and are the parents of a child.

So the three-year mark is not a general test for being common-law. It is one route into spousal support.

Property: a major difference from marriage

The Marital Property Act lets each spouse have marital property divided in equal shares on application, after divorce, nullity or separation with no reasonable prospect of resuming cohabitation. That presumption applies to married persons. A common-law partner does not get automatic equal division of the home or other property.

Common-law partners must rely on unjust enrichment or constructive trust, or negotiate a settlement. The Supreme Court of Canada treats unjust enrichment as the main route for dividing property after an unmarried relationship ends, and cohabitation alone does not create an entitlement to a share.

Parenting and protection from violence

Parenting rights do not depend on marriage or common-law status. A parent or person standing in a parent's place can apply for a parenting order, and the Court considers only the best interests of the child.

For emergency protection, the Intimate Partner Violence Intervention Act covers two persons, whether or not they have lived together, who are or were married, in a conjugal relationship, or in a dating or romantic relationship. You do not need to meet a common-law definition to use it.

What to do next

• Write down when you started living together and whether you have lived together continuously.
• Note whether you have children together.
• Gather records of shared bills, accounts, leases and property ownership.
• Record who depends on whom financially.
• Ask a lawyer how your facts fit the definition for the issue you face, whether support, property or parenting.
• Consider a written agreement with your partner, and get legal advice before you sign.

Frequently asked questions