Understanding Common Law in New Brunswick

Posted on August 17, 2021

The percent of couples with a common law status in Canada has steadily grown over the years. In 2016, the number of common law couples hit 17.8% of the population, which is up from 5.6% in 1981. 

If you're one of the couples considering common law, it's important to know that Canada allows the provinces to have their own common law definitions. Common law in New Brunswick, Canada is much different from how Ontario and Quebec define a common law relationship.

Canada's federal law acknowledges couples as common law after a year of living together, but most of the provinces have stricter guidelines.

So what is considered common law in New Brunswick? A common law relationship in New Brunswick is valid after three years or more of living together, but legal agreements and children can alter this timeline.

If you're weighing your options regarding common law vs. marriage in New Brunswick, then read this guide to learn about the laws of the province and how they'll affect your financial assets and domestic life.

How to Prove to CRA That We Are Common Law

Your marital status can be important to you for many reasons, but it will certainly affect your taxes, property ownership, and children. If you've decided that common law is the right choice for you, you'll need to prove to the CRA that you fit the qualifications.

The first important thing to prove is that you live with your partner at the same main residence. The CRA requires that you prove you've been living together for 12 consecutive months by the date of tax filing, December 31st of that year. If you have not yet met the minimum time by tax season, you should continue filing as single.

If you have a child together, however, you don't need to meet the 12-month minimum. You'll need to submit proof to the CRA to change your marital status.

Shared Ownership of Residential Property

A great way to show proof of living together is to show documents that you own the same property. If you have bought a house together, you can show the house deed with both your names on it and dated.

Joint Leases or Rental Agreements

If you don't own a home but have rental agreements or joint leases together, you can provide this instead. You'll just need to show documents that have both your names listed and dated.

Bills for Shared Utility Accounts

It's also great to show that you two are financially interdependent while living together. Showing that you have shared utility accounts can prove that you both live in the same residence and financially contribute to expenses.

Important Documents for Shared Address

Other important documents that prove a shared address can be individual passports or ID cards that have the same address listed. You can also provide insurance policy documents.

Identification Documents

Finally, if you have a child together, you'll want to prove the child's identity. You can use a birth certificate or ID card. You'll also have to prove your own identity as well.

How Long After Living Together Are Considered Common Law in New Brunswick? 

How long do you have to be together to be common law in New Brunswick? While the Canadian Revenue Agency only requires one year of living together, New Brunswick has much stricter laws. The province requires that you be living for three or more years together.

But when do you have to claim common law? The province will treat you as common law after three years, but you can choose to apply sooner if you have a child together or a cohabitation agreement. 

What Is a Cohabitation Agreement?

A cohabitation agreement in New Brunswick will help protect your assets in the way you feel best where the province doesn't necessarily get involved.

It is a legally binding document that outlines a couple's intentions and expectations for living together and what should happen if they separate.

Is It a Good Idea?

Without a cohabitation agreement, you, your children, and your assets will be subject to New Brunswick law. If you are looking for extra protection or different arrangements to be made than what is written in the law, an agreement is a good idea. It is a great practice, anyway, for you and your partner to express your expectations for your relationship.

Can I Make One Before My Spouse Moves In?

It is highly recommended that a cohabitation agreement be written before you move in with each other. This helps start your relationship healthily and protects you legally from the start, rather than fighting for things retroactively in the event of a separation.

How Much Does It Cost?

You can write a cohabitation agreement on your own, but it's highly recommended that you get legal help. A basic cohabitation agreement could cost about $500 or less. More complicated situations that involve spousal support or child custody, however, could make it a bit more expensive.

Do I Need A Lawyer For One?

Lawyers are a great idea for cohabitation agreements. It is recommended that both parties get their own attorney so that both sides have their best interests addressed.

What If We Have a Verbal Agreement?

New Brunswick common law rules that you need to have a written document to hold up a cohabitation agreement in court. Without written documentation that is signed and dated by both parties, nothing you agreed on will be legally valid.

Do Common Law Partners in New Brunswick Have to File Taxes Together?

According to Canadian federal law and CRA guidelines, common law couples are not allowed to file taxes jointly. If you are in a common law relationship, you must file your own individual taxes. Instead, you'll include your marital status and the personal information of your common law partner on your taxes.

Filing taxes with incorrect marital status is considered fraud. Even if you live in a province where common law is not recognized for a few years, you'll need to make sure you're filing taxes according to federal law.

If you file as single when you are common law, you can get fined and be denied benefits. The CRA will also reassess your taxes so that you are paying the correct amount.

What If We Have Children Together?

If you have children together, taxes can feel more complicated. You might be wondering how to file for childcare expenses if you aren't filing taxes jointly. In this case, the spouse with the lowest net income is required to file for the childcare expenses.

Filing as common law can change the amount of taxes you pay and the level of benefits you receive. Be aware that your childcare benefits could change.

What Not to Do in a Common Law Relationship

One of the biggest mistakes you can make in a common law relationship is not understanding the law in your country and province. You'll want to go about your financial and childcare decisions based on the laws that will govern your relationship in the event of a separation.

If there are assets that you would like to keep for yourself in the event of a common law breakup, you should avoid putting your partner's name on any documentation of ownership. In some provinces, you will still have to fight to keep it, but the fight becomes more difficult once they have a claim to the ownership.

In New Brunswick, there is a unique law that allows for claims for spousal support. You'll need to be aware that if your partner had to give up their career to take care of your child, or your relationship was very dependent on one person supporting the other financially, your partner could ask for spousal support. 

Not understanding the financial implications of what your partner is entitled to could risk your assets and your children.

What Is My Partner or Spouse Entitled To?

The Family Services Act in New Brunswick is a unique law in the Canadian provinces. It says that after three years of living together, common law partners are the same as married couples when it comes to spousal support. In the case of a separation, one partner could claim spousal support in the same way married couples can.

On the other hand, common law partners do not have the same property division laws as married couples. Becoming a part of a common law relationship does not give you any right to your partner's property. In the event of a separation, assets are not divided evenly, but according to who originally owned them.

Therefore, if your partner moved into your house, you can legally kick them out of your house. Any debts that existed before the partnership continue to be the responsibility of the person that originally had them.

Any assets or debts that have both names listed will cause further complications. The legal negotiations will rule on these issues according to the cohabitation agreement or settlement.

What Happens If We Separate?

A common law separation in New Brunswick allows for certain things to occur as if you have a married marital status. The government treats child support and custody the same whether you are common law or married. You don't however, have rights to the other person's property or inheritance.

Instead of a divorce, New Brunswick common law separations can occur as simply as moving out. Once you separate from your partner for 90 days, your common law relationship is legally dissolved and you can begin filing taxes as single.

Prepare Your Assets for Common Law

Now that you understand how New Brunswick defines common law relationships, you can go forward confidently with your common law arrangements. Make sure to outline all of your wishes in your cohabitation agreement to protect you and your children beyond common law in New Brunswick.

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