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Family Justice

Family Law

Common Law

 

Click to download the public information pamphlet: Sharing a Life, Sharing Assets: How the new Common-Law Partners' Property and Related Amendments Act will affect your common-law relationship (122Kb)

Changes to Property Laws affecting Common-Law Partners
took effect June 30, 2004

How The Common-Law Partners' Property and Related Amendments Act can affect your common-law relationship

Introduction

On June 30, 2004, some important new laws affecting people in common-law relationships came into effect. The Common-Law Partners' Property and Related Amendments Act changed 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 could 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 came 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, 2008 public information booklet describes legal information resources available at:

http://www.gov.mb.ca/justice/family/englishbooklet/chapter1.html

Manitoba's Property Laws Before the Changes

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 family 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 did not apply to couples living in a common-law relationship, whether it was heterosexual or homosexual. That means 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.

New Act Changed Laws

When the new act came into force on June 30, 2004, all laws in Manitoba governing property rights of married couples were made applicable 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 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 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 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 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 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 has 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 has lived together for less than three years before June 30, 2004, the act applied once 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 permanently 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 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 changed. 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 changed are available at:

http://web2.gov.mb.ca/laws/statutes/index.php

(The changes in The Common-Law Partners' Property and Related Amendments Act have now been included in the affected acts.)

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, did not come into effect when the act became 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 February 2008) is contained in the Family Law in Manitoba 2008 booklet available at

http://www.gov.mb.ca/justice/family/englishbooklet/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

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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 were 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.

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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.

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Q I was in a common-law relationship for five years, but we separated in 2002. Can my former partner get half my property now that this new act is in place? What if we start living together again?

A The new act does not apply to couples who separated permanently before it came into force on June 30, 2004. Nor does it apply to situations where one of the partners died before the new act became 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 separated 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.

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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 may 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.

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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. Common-law partners are now governed by the same rules as married spouses. 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.

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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. This can be done by both former partners jointly, or by one of them alone but only after notice has been given to the other. 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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