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Friday, February 22, 2013

Common-Law Couples and Family Law Issues

On June 30, 2004, The Common-Law Partners’ Property and Related Amendments Act was passed in Manitoba which greatly impacted those in common-law relationships.  Prior to June 30, 2004, if a common-law couple separated, each person kept the property that was in his/her name.  Also, if one member of the couple died without a will, there was no law entitling the surviving partner to a portion of the deceased’s estate.  With the passing of The Common-Law Partners’ Property and Related Amendments Act, the following rights now apply to common-law partners, to name a few:

  1. If a common-law couple separates, each partner will be entitled to one-half the value of the property acquired by the couple during the time they lived together under The Family Property Act. This includes pensions (both employment and C.P.P.)- see The Pension Benefits Act.
  2. The Family Property Act also provides that if one member of a common-law couple dies leaving a will that either neglects or ignores the other partner, the law will override the will to ensure that the surviving partner receives his/her fair share of the couple’s family property.
  3. If a common-law couple separates, either party is now entitled to make a claim against the other for maintenance (spousal support) under The Family Maintenance Act.
  4. If one member of a common-law couple dies without a will, under The Intestate Succession Act, the surviving partner will receive all, or most, of the deceased partner’s property.  
  5. The Dependants Relief Act protects family members, which includes common-law partners, of a deceased person so long as those family members were substantially dependent on the deceased for financial support.  The court can be asked to make a maintenance order if the will does not provide enough support for the common-law partner or in cases where there is no will. 
  6. The Homesteads Act gives the surviving common-law partner who has homestead rights, the right to live in the family home for the rest of his or her life, even if the property was owned only by the deceased partner.

To qualify as a common-law couple, the couple can register their relationship with a The Vital Statistics Agency.  The legislation will also automatically apply to common-law couples who have lived together in a conjugal relationship for the time required by the legislation (either three years, or one year as long as they have a child together, depending on the legislation).  Those involved in a common-law relationship should speak with a lawyer to determine which legislation applies to them and to determine their rights and obligations.

If those presently in a common-law relationship do not want any or all of the property sharing laws or maintenance laws to apply to them, they can opt out of the legislation by signing a written agreement.  Those wanting such an agreement should consult a lawyer to assist them in the preparation and execution the document.

Bennet Waugh Corne

Posted by Alison Bennet at 11:47 AM 6 Comments

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