Even if you have lived with your partner for many years, you are not recognised as a couple by the Quebec courts. Unless you and your spouse write a co-habitation contract, there is no obligation on your spouse to support you, or an automatic right to inheritance. This can leave you vulnerable if you breakup, as you have no rights and your partner has no obligations. It can also be problematic in situations arising from death, separation, or when a person is declared to lack capacity to make decisions (for reasons of an accident, old age, etc.). Therefore, it is highly recommended that you see a lawyer to write a cohabitation contract to avoid any future problems. Free legal services can be available to help you in this process. Speak with a lawyer to get more information.
A cohabitation contract is a legal arrangement made between two people living together that explains the rights and obligations they owe each other while still together, in case of breakup, and in case of death of one of the partners. It also explains who owns what, and what will happen to shared items in the case of a breakdown of the relationship. This contract does not have to be done in front of a notary or a lawyer; however, seeking that professional assistance might be helpful as it might make for a better and more complete contract.
It is preferable not to make verbal agreements, because proving what was agreed to is very difficult.
A cohabitation contract often looks at the couple’s:
- The contract normally lists each spouses’ things (assets) and their exact value. This can include major items (car, house, furniture, etc.) and minor items (linens, dishes, etc.).
- If your partner sells something that belongs to you, you can take legal action against them.
- If you breakup, your property (the list of major and minor items) is divided in accordance with the terms of the contract.
- The terms of the contract can very rarely be changed by the court, so be careful and attentive when writing your contract.
- In a de facto relationship, the family residence, where you live, is completely within the control of the house’s owner, unless you set it up as an item that is co-owned.
- Sharing of responsibilities:
- The contract includes each spouse’s contribution to household expenses and shared responsibility for any expenses and debts.
- It is recommended that you do not allocate one spouse’s income to a single item, such as childcare or groceries.
- In a de facto relationship, both parents have the same rights and obligation with respect to their children irrespective of the status of your relationship with your partner (meaning you have the same obligations if you are married, in a civil union, or a de facto relationship). As long as both the mother and the father sign the Declaration of Birth form before a witness and send it to the Directeur de l’état civil within 30 days of the birth along with the Attestation of Birth given to them by the physician, there is legal recognition that they are the parents of the child.
- The parents must provide their children with the basic needs for education, shelter, food, and clothing (CCQ 33).
- All children are equal in the eyes of the law, regardless of the parents’ marital status (CCQ 513).
- In the case of separation, the court’s decision is influenced first and foremost by the best interests of the child (CCQ 33).
- Power of attorney:
- The contract often specifies your spouse as the power of attorney in case of an accident.
- This means that if you are not able to act on your own behalf because you are, for example, injured, then your spouse can make legal decisions on your behalf, such as selling your house.
Certain laws, however, apply the same criteria to couples just living together and married/civil union couples, particularly those governing: social aid, legal aid, income tax, the Quebec pension plan, and worker’s compensation.
To find out more on cohabitation contracts, please see http://www.publicationsduquebec.gouv.qc.ca/eng/products/978-2-551-19757-6
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 breakup, this is NOT the case in Quebec. Unless you write a co-habitation contract with your partner, you have no right to receive support from your partner, and no obligation to provide support to your partner. There are no shared items unless you have registered them as co-owned. Put simply, living together and being co-dependant gives rise to no rights or obligations in Quebec.
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 breakup?
The consequences of a breakup will depend greatly on whether or not you have a cohabitation contract (see “What is a cohabitation contract and what should I put in it?” above for further information).
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, or where an agreement would essentially be imposed by one of you on the other, you can try certain recourses, like presenting an “action in partition” in court.
If you have children, you may benefit from mediation.
The general principle is that each party leaves with what is theirs.
What other documents are available to protect my partner and in the event of a breakup, illness or death?
Besides having a common law contract, 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, if not 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 case of inaptitude: in the mandate you could designate your unmarried partner as your representative
- 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 a 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 with our family home if I breakup 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 contract, and on whether or not you are able to come to terms with your ex-partner.
There is no clear solution provided by the law so you will have to come to an agreement. You can agree that one of you will continue to live in the apartment and pay rent while the other will leave.
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 though he or she did not sign the lease. To be entitled to that protection, the spouse must have lived in the home with the lessee (person renting the house) for at least 6 months and still be living there. The spouse must notify the landlord within two months of the departure of the spouse who signed the lease.
For more information on ending your lease early, please see http://www.educaloi.qc.ca/en/capsules/tenants-right-end-lease.
As well, if one partner was the victim of violence or sexual aggression by the other partner, the law allows you to prematurely end a lease and find a more secure location.
For more information on ending your lease early in a situation of conjugal violence, please see http://www.educaloi.qc.ca/en/capsules/ending-lease-spousal-or-sexual-violence.
If only one person’s name is on the deed of purchase: The owner may sell, rent, sublet, mortgage etc. without needing the authorization of the partner.
If both of your names are on the deed of purchase: Each of you must continue to pay your share of the fees and mortgage until the situation is resolved.
There are three options:
- Selling the property and sharing the value of the property
- One of you can buy back the other person’s share in the property
- Addressing the court and abiding by the judgment rendered. The judge will order:
- Partition (division)
- Forced sale
- You can also ask the judge to have exclusive use of the property, to get compensation if your ex-partner obtains exclusive use, to determine the obligations of each of you with regards to fees and expenses for maintenance until it has been sold, to order your ex-partner to accept the visit of a real estate agent, to order your ex-partner to maintain the property in good condition to facilitate the sale, etc.
! If you have children, the court might determine that the parent with custody will get to stay in the family home because it is in the best interest of the children.
What happens with our pension plan in case of breakup?
You will only be able to benefit from your former partner’s pension plan if your former partner agrees, as you must present a joint request with your former partner to the administrator of your pension plan.
Can we benefit from mediation?
If you have children, yes you can benefit from mediation. Mandatory family mediation applies whether or not you are married. The mediator can help you negotiate the terms of your separation and the conditions applicable to the children. You have the right to 6 free mediation sessions, including the initial information session if you have children. For more on mediation, please see the “Arbitration and Mediation” section of “I want to leave my partner”.
! If you are a victim of conjugal violence, we suggest you speak with a social worker or a lawyer before considering mediation.
Can I get a “compensatory allowance” when in a de facto relationship?
There are two ways in which you could get compensation for work put towards your ex-partner’s business. However, proving these situations might be difficult:
- Tacit Partnership: If your ex-partner started a business in his name but both of you invested a lot of time, money and effort, it is considered that your “real intention” was to create a joint society; you could then obtain your share in the business.
- Unjust enrichment: If your ex-partner has become enriched and you have become poorer and these two facts are causally linked you could get compensation in court.