Property Laws affecting Common- Law Partners

Introduction

In Manitoba, The Family Property Act sets out the rules for dividing the value of family property between spouses or common-law partners. In general, family property is any property that either or both spouses have acquired while married and living together, or that either or both common-law partners have acquired while they have cohabited. If a couple cohabits for a period immediately before their marriage, the property that they acquire during cohabitation is also family property. The basic rule is that both spouses or common-law partners have a right to an equal share in the value of family property when they separate, no matter which one owns the property or where it is located.

Before June 30, 2004, Manitoba’s family laws dealing with property did not apply to couples who were living together but not legally married. The laws only applied to married spouses. On June 30, 2004, The Common-Law Partners’ Property and Related Amendments Act came into effect. It provided that provincial property laws such as The Family Property Act and The Homesteads Act apply to common-law partners who have either registered their relationship with the Vital Statistics Agency or who have lived together for a specified period of time, such as The Family Property Act which applies to common-law partners who have lived together in a conjugal relationship for at least three years

Manitoba's property laws prior to June 30, 2004

Manitoba's property laws treated legally married spouses as equal partners in a marriage, regardless of the role played by either one. This meant that spouses had certain rights and responsibilities to each other; rights to share family property and pensions, the family home and each other's estate. The law stated 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.

Before June 30, 2004, Manitoba’s property laws did not apply to couples living in a common-law relationship, whether it was opposite sex or same sex relationships. That meant that before June 30, 2004, if a common-law couple split up, each person kept the property that was in his or her name. Also, if one member of a common-law couple died without a will, there was no law entitling the surviving partner to a share of the estate (although the partner may have been able to apply to the court for support payments from the deceased partner's estate). Furthermore, if one member of the couple died and the surviving partner didn't feel they were left enough in the will, that partner may have had trouble getting a share of the estate. To receive a share of property upon separation, or a partner's death, the surviving partner needed to prove to the court that he or she contributed to acquiring, improving or maintaining the property and, therefore, should have been compensated.

Manitoba’s current property laws since June 30, 2004

Since June 30, 2004, all laws in Manitoba governing property rights of married couples were made applicable to common-law partners. This means 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 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.

Since June 30, 2004, the changes in the law apply to common-law couples who:

  • register their relationship at the Vital Statistics Agency
  • 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 apply to them).

Registering Your Common-Law Relationship

Since June 30, 2004, common-law couples (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 apply to married couples.

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: 1-866-949-9296 (in Canada)
Fax: 204-948-3128
Email: vitalstats@gov.mb.ca

If you choose not to register

Registration is completely voluntary. If a couple does not register their relationship, Manitoba’s property laws will apply to them 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 apply to them.

What about the period of time that couples lived together before the act became law?

It's important to know that the period of time a couple has lived together prior to June 30, 2004 is taken into account. If a couple already lived together for three years or more when the act became law, it applied to them immediately as of June 30, 2004. If a couple lived together for less than three years before June 30, 2004, Manitoba’s property laws applied to them once the couple had been together for three years.

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 family property laws is to consult a lawyer and draw up the proper legal documents.

Before entering into a cohabitation agreement, separation agreement or any other written document signed by both partners, consult a lawyer to ensure that you fully understand the rights and obligations involved, 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 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 dissolution after 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. 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

Manitoba laws can be found at http://web2.gov.mb.ca/laws/index.php.

For general information on family law in Manitoba, see the online publication Family Law in Manitoba 2014. This publication is also available in printed and alternate formats on request. Call the Manitoba Justice Family law Section at 204-945-0268 or inquire by email to flb@gov.mb.ca.

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