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Sharing a Life, Sharing Assets:
How the new Common-Law Partners'
Property and Related Amendments Act will affect your common-law
relationship
Changes to Property Laws
affecting Common-Law Partners
taking effect June 30, 2004
How The Common-Law Partners' Property and Related
Amendments Act will affect your common-law
relationship
Introduction
On June 30, 2004, new laws
affecting people in common-law relationships will come into effect. The
Common-Law Partners' Property and Related Amendments Act will change
family law in Manitoba. If you are living in an intimate relationship
with a person you are not married to - often referred to as a common-law
relationship or a common-law marriage - these changes will affect you.
The changes apply to both heterosexual and homosexual relationships.
This document explains, in
general terms, the family property laws before the new act comes into
effect, as well as the major changes made by the act. This information
is provided to Manitobans to raise awareness of the changes and to give
individuals the opportunity to consider them and organize their affairs,
if they wish to do so.
The following information is
very general in nature and does not provide a complete explanation of
all the changes contained in the act. If you think the act might apply
to you, you should consult a lawyer. A lawyer can help you fully
understand the specific impact of the act on your finances and
property.
Chapter One of the Family Law in Manitoba, 2002
public information booklet describes legal information resources
(available at
http://www.gov.mb.ca/justice/family/chapter1.html
Current State of Manitoba’s
Property Laws
If you’re married…
Manitoba’s property laws treat
legally married spouses as equal partners in a marriage, regardless of
the role played by either one. This means that spouses have certain
rights and responsibilities to each other; rights to share marital
property and pensions, the family home and each other’s estate. The law
says that if spouses separate, each person is entitled to half the value
of all property acquired by both of them during the marriage. This
includes pensions. If a spouse dies without a will, the law says that
all, or most of the deceased's property will go to the surviving spouse.
If you’re in a common-law
relationship…
Before June 30, 2004, these
property laws do not apply to couples living in a common-law
relationship, whether it is heterosexual or homosexual. That means that
if a common-law couple splits up, each person keeps the property that is
in his or her name. Also, if one member of a common-law couple dies
without a will, there is no law entitling the surviving partner to a
share of the estate (although the partner may be able to apply to the
court for support payments from the deceased partner’s estate).
Furthermore, if one member of the couple dies and the surviving partner
doesn’t feel they were left enough in the will, that partner may have
trouble getting a share of the estate. To receive a share of property
upon separation, or a partner’s death, the surviving partner would need
to prove to the court that he or she contributed to acquiring, improving
or maintaining the property and, therefore, should be compensated.
New Act Changes Laws
When the new act comes into
force on June 30, 2004, all laws in Manitoba governing property rights
of married couples will also apply to common-law partners. This means,
for example, that:
-
If a common-law couple splits
up, each partner will be entitled to half the value of the property
acquired by the couple during the time they lived together, including
pensions: see The Family Property Act (formerly called The Marital
Property Act) and The Pension Benefits Act.
-
If one member of a common-law
couple dies without a will, the surviving partner will receive all, or
most, of the deceased partner's property: see The Intestate Succession
Act.
-
If one member of a common-law
couple dies, leaving a will that ignores or neglects the surviving
partner, the law will override the will to ensure that the surviving
partner receives his or her fair share of the couple’s family
property: see The Family Property Act.
As of June 30, 2004, the new
laws will apply to common-law couples who either:
-
register their relationship at
the Vital Statistics Agency, or
-
if not registered, have lived
together for a certain period of time (in most cases, three years,
although in some acts it may be one year if the couple has a child
together, or less; once a couple has lived together for three years, all
the major property laws will apply to them).
Registering Your Common-Law
Relationship
As of June 30, 2004, common-law
couples (who are adults and living in Manitoba) may choose to register
their common-law relationships at the Vital Statistics Agency. Once a
relationship is registered, all the major property laws immediately
apply to the couple in the same way they now apply to married couples.
Registration, however, is
completely voluntary. Common-law couples are not required to register.
However, whether you register or not, the new laws will apply to you
eventually if you continue to live together.
You may register your common-law
relationship by completing and filing a simple form with the Vital
Statistics Agency. For information on registering a common-law
relationship, the fees for registering, and certificates proving
registration, contact:
The Vital Statistics Agency
254 Portage Avenue
Winnipeg, Manitoba R3C 0B6
Phone: (204) 945-3701
Toll-free: 1-800-282-8069 (Ext. 3701)
Fax: (204) 945-0424
If you choose not to register
Even if a couple does not
register their relationship, the new property laws will still apply once
they’ve lived together for a certain period of time. The period of time
varies depending on different laws, but it is usually three years. Once
a couple lives together for three years, all the major property acts
will apply.
What about the period of time
that couples lived together before the act becomes law?
It’s important to know that the
period of time a couple has lived together prior to the act becoming law
on June 30, 2004 is taken into account. If a couple has already lived
together for three years or more when the act becomes law, it will apply
to them immediately. If a couple has lived together for less than three
years, the act will apply once the couple has been together for three
years.
This means that all the property
acquired by either partner, for the entire time they lived together
(before and after the act came into force on June 30, 2004), will be
governed by the act. The act will not apply to couples who have
separated before June 30, 2004, nor will it apply if one member of the
couple has died before that date, regardless of how long the couple
lived together before the separation or death.
Opting out
If you and your partner do not
want to be subject to the rights and responsibilities of these new
property-sharing laws, you can opt out. Just like married couples can
sign agreements that release them from property distribution laws,
common-law couples can enter into similar agreements.
You can also make a will
indicating how you want your property distributed when you die. If,
however, you do not leave your partner the minimum required by law, and
you don’t have a written agreement with your partner, they may be able
to override your will to get, for example, their share of your family
property or support payments from your estate.
Opting out of dividing pensions
and estate rights have some technical requirements that must be
considered. The best way to ensure that you and your partner can
legally opt out of these new family property laws is to consult a lawyer
and draw up the proper legal documents.
VERY IMPORTANT: Before entering
into a cohabitation agreement, separation agreement or any other written
document signed by both partners, consult a lawyer to ensure that you
are fully aware of the rights you are giving up and/or the obligations
you are assuming and that your agreement meets legal requirements.
Terminating a Common-Law
Relationship
Just as some property laws stop
applying to spouses once they’ve been separated or divorced for a
certain period of time, the new laws take into account separation of
common-law partners.
A common-law relationship that
has been registered with the Vital Statistics Agency can only be
terminated by registering a dissolution, and only once the couple has
lived apart for at least one year. If a common-law relationship was
never registered, it can only be terminated by the passage of time. In
most cases, this is three years of living apart.
The termination date affects
some rights, such as the right to apply to court for a division of
property, but some rights and responsibilities continue beyond
termination, while others end when you stop living together. You should
speak to a lawyer to find out what your rights and obligations are in
your own situation.
Additional Information
For more detailed information,
consult the act itself, as well as all the acts it changes. You can
obtain copies via the Internet.
The Common-Law Partners'
Property and Related Amendments Act is available at:
http://web2.gov.mb.ca/laws/statutes/2002/c04802e.php
The Manitoba property laws the
act changes are available at:
http://web2.gov.mb.ca/laws/statutes/index.php
(The changes in The Common-Law
Partners' Property and Related Amendments Act will be included in the
affected acts not too long after June 30, 2004.)
Paper copies can be purchased
from:
Statutory Publications
Lower Level, 200 Vaughan Street,
Winnipeg, Manitoba R3C 1T5
Phone: 204-945-3101 or toll-free
1-800-282-8069, ext. 3101
You should note that three
amendments to The Wills Act, contained in the act, will
not come into effect when the
act becomes law. These amendments would have caused a person's will to
be automatically revoked once the person they are living with qualifies
as their common-law partner, either by the couple registering their
relationship or by living together for the required period of time.
(They are found at clause 25(6)(b), subsection 25(8) and clause 25(9)(a)
of the act.)
General information on family
law in Manitoba (current to November 2003) is contained in the Family
Law in Manitoba, 2002 booklet and Updates to the 2002 Booklet, both
available at:
http://www.gov.mb.ca/justice/family/englishbooklet2004/index.html
Questions & Answers
Q I have been living with a
roommate for over three years. Does the new act apply to us?
A That depends on the nature
of the relationship. The act only applies to people who are living in
a conjugal relationship. There
is no single legal test to define this relationship, but many factors
would be considered, such as:
-
whether you live under the same
roof
-
what the sleeping arrangements
are
-
whether you have a sexual
relationship
-
whether you maintain an attitude
of fidelity to one another
-
whether you share household
chores or perform any personal services for one another
-
whether you participate in
community or neighbourhood activities as a couple
-
whether you present yourselves
as a couple to others
......................................
Q How
will anybody (for example, the government) know that my partner and I
have lived together for three years, if we don't register our
relationship?
A The property laws that will
be changed by the new act mainly address rights and responsibilities
between individuals. The government will not usually be involved. If
there is a dispute about the length of time a couple has lived together,
either side in the dispute may give evidence about this in court and a
judge will decide. This evidence could be testimony from witnesses
saying how long the couple has lived together, documents such as leases,
or other agreements, signed by both partners, or other forms of
evidence.
......................................
Q My common-law partner and I
want to keep our property completely separate. Can we do this under the
new law?
A If couples agree, the act
allows them to deal with their property in a different way. Couples can
avoid the distribution plan set out in The Intestate Succession Act by
making wills. They can opt out of The Family Property Act by entering
into an agreement, such as a cohabitation agreement, separation
agreement or release, or any other written document signed by both
partners.
There are specific requirements
involved in opting out of some estate legislation. And opting out of the
credit-splitting provisions of laws dealing with pensions is also more
complicated. It requires a written agreement, independent legal advice
and receipt of a statement from the pension plan administrator.
You should speak with a lawyer
before entering into any agreement, so that you are fully aware of the
rights you may be giving up and/or the obligations you may be assuming
and to ensure your agreement meets legal requirements.
......................................
Q Does the act affect gay and
lesbian couples?
A Yes. This law applies to all
people living together in conjugal relationships. It applies equally to
heterosexual and homosexual relationships.
......................................
Q I am a retired widow with
grown children and have recently moved in with a man. My will provides
that when I die, my property will go to my children and not my
common-law partner. Am I affected by this new law?
A Yes and no. If you die with
a valid will before you and your partner have lived together for three
years, this new law will have no
effect on your estate. (Your partner may, however, be able to obtain a
portion of your estate if he can prove to the court that he contributed
to acquiring, improving or maintaining the property and, therefore,
should be compensated. This possibility existed before the new act
too.) If, however, you should die after you've lived together for three
years or more, or you register your relationship at the Vital Statistics
Agency, and your will does not provide sufficiently for your common-law
partner, he could apply for an accounting and division of assets under
The Family Property Act. This can be avoided if you and he enter into a
written agreement not to share your property and waive your estate
rights under that act. You should consult a lawyer about what you must
do to have an appropriate estate plan in place.
......................................
Q I was in a common-law
relationship for five years, but we separated a few months ago. Can my
former partner get half my property when this new act goes into effect?
What if we start living together again?
A The new act does
not apply to couples who
separate permanently before it comes into force. Nor does it apply to
situations where one of the partners dies before the new act becomes
law. However, if you start living together again, you should know that
under The Homesteads Act and certain parts of The Family Property Act,
you will qualify as common-law partners once you've lived together again
for at least 90 days. You should also know that even though the new act
does not apply to couples who separate before June 30, 2004, individuals
in this situation may still be able to get a share of property on
separation or in the event of a partner's death. For this to happen, the
individual would need to prove to the court that he or she contributed
to acquiring, improving or maintaining the property and, therefore,
should be compensated.
......................................
Q My common-law partner and I
have been together for six months, and we just bought a house together.
If we should split up, who gets to stay in the house?
A If common-law partners do not
agree on who will remain in their home when they separate, either
partner will be able to apply to the court for the right to stay in the
family residence. An application is made under Manitoba's Family
Maintenance Act, and the order may be for a specific length of time, and
subject to conditions the court considers appropriate. If partners
don’t agree on selling a jointly owned home, either partner can apply to
the court for an order that the property be sold. The court may or may
not order the home’s sale and impose conditions.
......................................
Q What if I inherit money or
property? Do I have to split it with my common-law partner if we break
up?
A The answer depends on what
you do with your money or property. Once the new act comes into force on
June 30, 2004, common-law partners will be governed by the same rules as
married spouses are now. Generally, assets received as gifts or
inheritances do not have to be split with a partner unless it can be
shown that the gift or inheritance was made with the intention of
benefiting both partners. However, there is an important exception to
this general rule. If you take a gift or inheritance and change it into,
or mingle it with, family assets, it may become shareable.
For example, if you inherit a
sum of money and use that money to buy a house that you and your partner
live in, the value of the house may have to be shared with your partner
if you break up. Similarly, if you receive a gift of some land and you
sell the land and put the money into your joint savings account (from
which you and your partner pay all your regular bills), the money may
become shareable. If you wish to keep inherited money or property from
becoming shareable, you should speak to a family law lawyer about the
steps you can take to keep it separate from any assets that are used by
you and/or your partner for shelter, transportation, the household, or
other purposes.
......................................
Q Once you are in a common-law
relationship, how do you get out of it?
A A common-law relationship
that is registered with the Vital Statistics Agency can only be
terminated by registering a dissolution, and only once the couple has
lived apart for at least one year. If a common-law relationship was
never registered, it can only be terminated by the passage of time. In
most cases, this is three years of living apart.
You should know that the termination date affects some rights, such as
the right to apply to court for an accounting and division of assets
under The Family Property Act. However, while some rights end when you
stop living together, others continue beyond the termination date. You
should speak to a family law lawyer about the rights and
responsibilities that apply to your particular situation.
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