One of the first questions you’ll answer when making a will with Willful is your marital status. There are three options to choose from: married, single or common law. When answering this question, you might be wondering whether your relationship is considered common law. It’s important to note that the criteria for a common law relationship differs based on the province you live in. In this article, we explain the criteria for a common law relationship in each of our active provinces to help you make the right selection when creating your will.
It’s also important to understand why a will matters if you’re in a common law relationship, since the law treats legally-married couples differently than common law spouses.
What happens if I’m in a common law relationship and I don’t have a will?
If you die intestate (without a will), your estate will be distributed according to default rules in your province. These rules typically allocate to a spouse first, then children, then other relatives. Common law spouses are not treated the same as legally-married spouses, so if you’re in a common law relationship, your common law spouse would not have the same entitlement under these intestacy rules. They may have a claim to your estate, but that process involves filing a claim, and there’s no guarantee it will be approved – a common law spouse’s right to a share of the estate would be based on the unique facts of the situation and the judge’s discretion. The best way to ensure a common law spouse is provided for is to create a will naming them as a beneficiary.
As defined in Alberta’s Adult Interdependent Relationships Act, a common law relationship is called an Adult Interdependent Relationship. A couple is considered to be in an Adult Interdependent Relationship if you have made a formal and valid Adult Interdependent Partner agreement together, have lived together in a relationship of interdependence for at least three continuous years, or have lived together in a relationship of interdependence of some permanence where there is a child of the relationship (either by birth or adoption).
As defined in British Columbia’s Family Law Act, a couple is considered to be in a common law relationship after living together in a marriage-like manner for at least two continuous years, or if they’ve lived together for less than two years but have a child together.
As defined in Manitoba’s Family Property Act, a couple is considered to be in a common law relationship if they have registered their relationship at the Vital Statistics Agency or if not registered, have lived together for at least three years, or one year if the couple has a child together.
As defined in New Brunswick’s Family Services Act, a couple is considered to be in a common law relationship after living together continuously for at least three years or have a child together and are in a relationship of some permanence.
As defined in Nova Scotia’s Maintenance and Custody Act, a couple is considered to be in a common law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. However, how long the couple must live together can vary depending on the issue being addressed.
As defined in Ontario’s Family Law Act, a couple is considered to be in a common law relationship after living together for at least three continuous years. If they have a child together by birth or adoption, they only need to have been living together for one year.
As defined in Saskatchewan’s Family Property Act, a couple is considered to be in a common law relationship after living together continuously for at least two years.