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SEPARATION OF “COMMON-LAW” (DE FACTO) COUPLES

séparation de conjoints de fait

by Me Alice Florian

In Quebec, approximately 40%1 of couples live in a de facto union (in other jurisdictions referred to as a common-law relationship). De facto spouses cohabit and may start a family, but they never marry or unite in a civil union. However, under the Civil Code of Quebec, the status of a de facto spouse is not recognized. So, in the event of a separation, they do not benefit from the same protections as married or civil union spouses. But what are the rights of de facto spouses at separation?

First: the children.

The status of de facto spouses does not affect the rights of their children. Whether their parents are married, in a civil union or in a de facto relationship, they all have the same rights. Upon separation, the de facto spouses will have to agree on the custody of the children and on the access rights of the non-custodial parent, if any.

In function of the type of custody established and the income of the spouses, they will determine an amount of child support payable by one spouse to the other. In the event that the spouses disagree, they may seek the services of a mediator to assist them.

If the disagreement persists, the Court will decide. Furthermore, regardless of the type of custody established, both parents will continue to equally share parental authority. They will make all important decisions together in the best interest of the children.

Second: the assets.

Under the Civil Code of Quebec, de facto spouses do not benefit from a family patrimony or from a matrimonial regime which would include all the assets accumulated by the partners. Thus, upon separation, each spouse will generally keep the assets they own. Regardless, spouses can always agree on certain terms and modalities regarding the partition of their assets. In the event they cannot agree, the Court will decide.

Finally: financial support.

At law, de facto spouses are not entitled to a claim spousal support. However, in certain specific circumstances, a spouse who was enriched at the expense of the other will be required to indemnify the impoverished spouse. This is the principle of unjust enrichment. For example, if a spouse worked for many years for the other spouse’s company without a salary, this situation may cause him a financial disadvantage at separation. The enriched spouse must, if certain requirements are met, indemnify the impoverished spouse to compensate for the impoverishment.

De facto spouses agreement

Although de facto spouses do not have the same protections as married or civil union spouses at separation, it is possible to remedy to this with a written agreement. In an agreement, de facto spouses can establish, in the event of a separation, the terms and modalities for the partition of assets and/or support payments. We recommended that you consult with a lawyer to guide you in this regard.

1 Government of Canada’s 2016 Census