Protecting common law couples

by Brian DuBreuil Posted: Jan 31, 2013 1:07 PM ET Last Updated: Jan 31, 2013 1:07 PM ET

Here's a quick quiz for you. If you and your partner split up what are you entitled to receive?

If you are married the answer is simple: 50% of all family assets. But if you are living common law your situation is much more complicated.

You would be entitled to spousal support and a portion of your partner's pension benefits, but you have no automatic claim to property such as the house, the car, even jewellry.

That's because common law relationships are not included in Nova Scotia's Matrimonial Property Act.

That doesn't mean common law spouses are left out in the cold.

Angus Gibbon, the executive director of the Law Reform Commission of Nova Scotia, says it's now basically up to judges to decide how to divide property when common law couples end their relationship.

Gibbon says judges consider a number of factors: how long they have been in the relationship, whether there is a child and what the spouse contributed to the relationship.

"The court has built itself some discretion to give some portion of the family's assets to the spouse even if it's not in her name", says Gibbon, "it is law, it's legal, but it's not in legislation and that's the difference."

That may soon change.

Last week the Supreme Court of Canada ruled that it's up to each province to decide whether to give common law couples the same protection as married couples.

Gibbon says the Law Reform Commission is now looking at whether to include common law couples under our province's Matrimonial Property Act - legislation that hasn't seen any significant amendments in more than 30 years.

It's an important issue for a lot of Nova Scotians. The Commission estimates 14% of Nova Scotia families are common law, and of those, 40% have children.

At first blush, it would seem giving those families the same rights as married couples would be a no-brainer.

But there are still some questions to consider. If those protections are offered to common law couples, when should it begin? As soon as they move in together, after six months, or two years?

And there are some people who want to remain common law because they entered the relationship with substantial assets of their own, their own home, car etc., and they don't want their new partners to be automatically entitled to half their assets.

The Law Reform Commission says it's going to look at all those questions during extensive consultations with both the public and legal experts. It doesn't expect to have its final report ready until sometime in 2014, and even then its recommendations are non-binding, so it will be up to the government of the day to decide whether to change the law.

But if you are living common law, and you don't want to wait for the law to change or get married just to obtain greater protection under the law, there is a third option.

Since 2001, Nova Scotia common law couples have had the option to register as "domestic partnerships." All you have to do is fill out a form through Access Nova Scotia and pay a fee of $22.68. Once registered you basically have the same rights and obligations as married couples under the law.

And if the relationship sours, it only costs $30.29 cents to file a Certificate of Termination.

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