In Quebec, even if you live with your partner for several years, you won’t be recognized as spouses by law or by the Quebec courts. Unless you have signed a cohabitation agreement, your spouse will have no obligation to assist you, nor any automatic right to inherit your property. In the event of a breakdown in your relationship, you will have no rights, and your spouse will have no obligations towards you. The absence of a marital bond could therefore leave you in a precarious position and vulnerable. Other problems could also arise in the event of death, separation or the declaration of incapacity of one of the partners (when a person is considered unfit to make decisions due to an accident, old age, etc.).
It is therefore strongly recommended that you consult a lawyer to draw up a cohabitation agreement to avoid potential complications in the event of separation. Free legal services are available to help you with this process.
A cohabitation agreement is a legal agreement between two people who want to live together for the long term. It sets out the rights and obligations of each spouse to the other for as long as they live together and provides for the division of property in the event of a break-up or the death of one of the spouses. This agreement does not need to be drawn up before a notary or lawyer. However, consulting a professional to help you draw up the contract will ensure that it is complete and valid. It’s best not to rely solely on a verbal contract between you and your spouse, since it will be very difficult to prove its existence later. Indeed, the terms of the contract will be difficult for the courts to modify. It is therefore important to pay particular attention to the way they are drafted.
A cohabitation agreement often includes:
- Property:
- The contract will normally list the assets of each spouse and their exact value. This can include high-value assets (car, house, furniture, etc.) as well as lower-value assets (dishes, paintings, etc.).
- If your spouse sells any of your property, you can take legal action against him or her.
- If you break up, your property will be divided in accordance with the terms of the agreement.
- In a de facto marriage, the family residence where you and your spouse live belongs entirely to the person who owns it, unless you have written a co-ownership clause for it.
- Sharing of responsibilities:
- The agreement should include each spouse’s contribution to household expenses and their responsibility for debts.
- It is advisable not to allocate one spouse’s income to a particular expense, such as childcare or grocery costs.
- Partners can specify how their debts will be separated in the event of a break-up.
- Responsibility regarding children:
- Parents in common-law union have the same rights and obligations toward their children. The child’s birth must be registered with the Directeur de l’état civil within 30 days by both parents.
- Parents must ensure the care, supervision, and education of their children. They must provide for their children’s necessary needs, including moral, intellectual, emotional, and physical needs (e.g., housing, food, clothing, healthcare, etc.). – 599 CCQ
- Quebec courts, when making decisions concerning children, must be guided by the best interests of the child and ensure that decisions are made in respect of their rights. – 33 CCQ
- Power of attorney:
- The contract specifies that one partner can represent the other regarding an urgent decision (consenting to medical care if the partner is unable to do so) OR to administer the other partner’s property.
- It is preferable to sign a separate document for this purpose, if: the partner wishes to grant specific powers to administer his or her partner’s property, or if he or she does not wish to have his or her cohabitation agreement read to anyone who needs to verify the powers he or she grants to his or her partner to represent him or her.
- Elements that cannot be included in a cohabitation agreement:
Clauses that do not comply with the law, such as:
- Donations in a contract that is not notarized (donations must be made in a notarized contract unless the donated property is given and immediately possessed by the partner).
- Transfer of property in the event of a partner’s death (only a will can permit this).
- Decisions contrary to the best interests of the children.
- A clause that violates a partner’s basic rights, such as a clause preventing a partner from practicing their religion in the presence of the children.
It is nearly impossible to list everything that might violate the law. Therefore, it is recommended to consult a lawyer or notary for the preparation or validation of a cohabitation agreement.
- Modification of the Agreement:
- The agreement can be modified at any time by the partners, but they must agree on the changes to be made. However, you cannot unilaterally modify the agreement.
- To modify the agreement, you and your partner must either draft a new one and sign it, with or without the presence of two witnesses, or consult a notary or lawyer.
- Cancellation of the cohabitation agreement in case of separation:
- It is possible to cancel your agreement in the event a separation. You can do this either by obtaining your partner’s permission to not enforce the contract or by signing another contract with your partner, provided that the original cohabitation agreement is no longer applicable.
However, some laws apply the same criteria to couples who live together as they do to married or civilly united couples. This is particularly true for laws concerning social assistance, legal aid, income tax, the Quebec pension plan, and workers’ compensation.
To find out more on cohabitation agreements, please see Cohabitation agreement | Gouvernement du Québec (quebec.ca)
I have lived with my partner for several years, and we have children. We have decided to separate – what rights do I have?
Although in other provinces two people living together can owe each other support in case they break up, this is NOT the case in Quebec. Unless you write a cohabitation agreement with your partner, you have no right to receive support from your partner, and no obligation to provide support to your partner. However, de facto spouses with children are required to pay child support in the event of separation. There is also a remedy for unjust enrichment, when a person’s contribution of money, goods or services has enabled another person to enrich their patrimony at their expense. This legal action is more complex, so please consult a lawyer to find out if it is possible in your situation.
In the case of death of one partner, what will happen?
There are two possibilities:
- Your partner made a will: in that case, the inheritance will be divided as indicated in the will.
- Your partner did not make a will: you will NOT be able to inherit from your partner. When a person is deceased and does not have a will, the property will be divided according to the Civil Code of Quebec, which designates certain people as legal successors by order of proximity. First, the law designates the spouse and children as successors, one third will go to the spouse and two thirds to the children. There is no recognition for the unmarried partner. If there is no spouse, the property is given in full to the children. If there are no children and no spouse, the succession will go to the parents or brother and sister and so on and so forth. If your partner is still legally married or legally in a civil union and has no will, the property will go to his spouse even if they are estranged.
What happens if my partner and I break up?
The consequences of a break-up will depend largely on whether or not there is a cohabitation agreement. Please see “What is a cohabitation agreement and what should I put in it?” for more information. (also add hyperlink: ‘Common law’ or De Facto Marriage | Athena Legal Info)
If you have signed a contract, it is what will determine the consequences of the breakup. If not, first and foremost you should try to come to an agreement among yourselves. In cases where you are not able to agree, it may be possible to obtain help from a family mediator or legal advisor. In the absence of a cohabitation agreement, the general principle is that each spouse leaves with the property he or she owns.
What other documents are available to protect my partner and in the event of a breakup, illness or death?
Besides having a cohabitation agreement, there are other documents you can have in order to secure your situation:
- Will: it is important to designate your partner as one of your successors in your will, or the division of your inheritance will be done in accordance with the law (which means it is very unlikely your partner will inherit)
- Will: it is important to designate your partner as one of your successors in your will, or the division of your inheritance will be done in accordance with the law (which means it is very unlikely your partner will inherit)
- Mandate/power of attorney : in the mandate you could designate your unmarried partner as your representative in case of inaptitude
- Deed of purchase of your property/Lease: try to have both of your names on these documents
What are the consequences of a break up for the children?
The rules that apply to children are the same regardless of whether the child was born of a marriage, civil union, unmarried partnership or other. Therefore, your obligations of support, custody, supervision, etc. will be fixed at the moment of your breakup by a mediator or by the court.
Support payments for the child will always be determined in accordance with the requirements of the Quebec model of Child Support Payments.
Speak with a lawyer for more information.
What happens to our family home if I break up with my partner?
The exact consequences of the breakup on your property will depend on what information was included in your deed of purchase, what you agreed on in your common law cohabitation contract, and on whether you are able to come to an agreement with your ex-partner.
RENTING:
There is no clear solution provided by the law so you must come to an agreement together. For example, you can agree that one spouse will continue to live in the apartment and pay the rent, while the other will have to move out but stop paying the rent.
However, the partner who has been left does have the right to continue occupying the dwelling in which the couple lived before the breakup even if he or she did not sign the lease. To be entitled to that protection, the partner must have lived in the home with the lessee (person renting the house) for at least 6 months and still be living there. The partner remaining in the residence must notify the landlord within two months of the departure of the spouse who signed the lease.
CCQ 1938
For more information on ending your lease early, please see https://educaloi.qc.ca/en/web-guide/rental-housing/.
In addition, if one partner has been the victim of domestic violence or sexual assault by the other partner, the law allows you to terminate a lease prematurely and find a safer place to live. For more information on how to end your lease in a situation of domestic violence, see: https://educaloi.qc.ca/en/capsules/ending-a-lease-for-spousal-or-sexual-violence/
OWNERSHIP:
If only one person’s name is on the deed of purchase: The owner may sell, rent, sublet, or mortgage the house without needing the authorization of the partner.
If both names are on the deed of purchase: Each of you will need to continue paying your share of the expenses and mortgage until the situation is resolved. Here are a few possible options:
- Selling the property and sharing the value of the property
- One of the partners can buy back the other person’s share in the property
- Address the court and follow the court’s decision. The judge may order:
- Partition (division)
- Forced sale
- You can also ask the judge to grant you exclusive use of the property, to obtain compensation if your ex-spouse obtains exclusive use, to determine the obligations of each of you with regard to maintenance costs until the property has been sold, to oblige your ex-spouse to accept a visit from a real estate agent, to oblige your ex-spouse to maintain the property in good condition in order to facilitate the sale, etc.
In the context of common-law unions, the parent who has custody of the child may be granted temporary use of the residence, even if it belongs to the other partner or if both partners co-own it. However, each situation is different, and the court may grant this right based on the child’s best interests.
What happens with our pension plan in case of breakup?
The definition of a common-law partner varies depending on the type of pension plan. Therefore, you need to refer to the specific laws governing each pension plan or retirement scheme to determine whether common-law partners can share the accumulated rights.
Can we benefit from mediation?
If you have children, you can benefit from mediation. Family mediation applies whether you are married or not. You must attend a free informational session on parenting and mediation if you have dependent children before going to court. If you choose to proceed with mediation, the mediator can help you negotiate the terms of your separation, and the conditions related to the children. You are entitled to 5 hours of free mediation if you have dependent children, and 3 hours if you do not have dependent children. However, these time limits can be extended in certain circumstances.
If you are a victim of domestic violence, we suggest that you contact specialized organizations or a lawyer before considering mediation.
Can I get a “compensatory allowance” when in a de facto relationship
There is no spousal support between common-law partners. Therefore, when common-law partners separate, they are not required to pay spousal support to each other. However, there is one situation in which a partner can obtain compensation for the work contributed during the relationship. This is through a claim of unjust enrichment. The partner must be able to demonstrate that the other partner became enriched while they themselves became impoverished, and that there is a causal connection between both.