By Sabrina Di Giambattista, Faculty of Law, McGill University (2005)
Many statutes, particularly those governing social assistance, legal aid, income tax, the Québec Pension Plan and workers’ compensation, now view de facto spouses, whether of the same or the opposite sex, as a couple. The drafters of Civil Code of Quebec, however, have deliberately chosen not to afford couples living in a de facto union the same rights and responsibilities as those married or joined in civil union, regardless of how long they have been together. In so doing, the law claims to recognize the deliberate choice many couples make to live together free from the bounds of marriage and civil union.
To avoid misunderstandings and unfair treatment, it is important to clarify your beliefs and expectations concerning your life as a couple and as a family. To this effect, it is a good idea to set down, in writing, your respective responsibilities and contributions in a contract for living together which you are advised to sign before a lawyer or notary. The contract for living together is the only protection you can give each other in terms of a legal framework for your relationship as a couple and, in the event of a dispute, constitutes irrefutable proof of what you have agreed. It may cover any aspect of daily life, establish terms and conditions relating to children or the family residence, and even include provisions that apply in the event of break-up or death. The contract cannot be altered or terminated by either spouse acting alone. However, depending on circumstances and events, you and your spouse may make mutually acceptable changes at any time.
Suggested Inclusions in a Contract for Living Together
Property
- Exact value of each spouse’s assets, with a list of all household goods and the name of the owner(s). It is in the interest of both partners to identify and keep their own bills, for if one partner sells or gives away property belonging to the other, or to both of them, the other partner can then take legal action. In the event of a breakup, the property is divided according to the terms and conditions of the contract, which cannot be altered by the court even if it is required to intervene.
- Family residence. Couples living in a de facto union are not entitled to the protection offered to individuals who are married or joined in a civil union under the Civil Code of Québec with respect to the family residence. As such, they may not register a declaration of family residence; consequently, one partner may sell or rent the residence of which he or she is the sole owner without telling the other spouse. De facto spouses may make provisions regarding the ownership or division of the family residence, in the event of break-up or death, in the contract for living together.
- Gifts. Couples may use contract for living together to specify any gifts they intend to make to each other.
Sharing of Responsibilities
Partners may use the contract to set out each partner’s contribution to household expenses and shared responsibility for any debts incurred.
Power of Attorney
When entering into a contract before a notary or lawyer, it is advisable to sign a power of attorney authorizing each partner to act on the other’s behalf under “special” circumstances. In the event on partner suffers a serious illness or accident, this power may prove crucial in settling affairs such as the sale of a house since the status of de facto spouses is not otherwise legally recognized.
Children
All parents, regardless of whether they are married, joined in civil union or de facto spouses have the same rights and responsibilities with respect to their children.
Couples may specify, in their contract for living together, decisions regarding care for the couple’s children. They may also agree to invest certain sums of money for their children’s future needs.
Furthermore, in the event of a breakup, they may provide for compensation, with guarantees of payment, for the parent who will have custody of the children.
Breakup
In the event of a break-up, settlement may be made according to the contract for living together, which must be respected, in its entirety, to settle all matters concerning the couple. The only clauses of the contract which may be varied by the judge, should court intervention be required, are those regarding the rights and well-being of the children. When cohabitation ends, regardless how long it lasted, de facto spouses do not have any support obligations to one another. However, the obligation for each of the parents to provide for their children remains.
De facto spouses who separated after June 30, 1999, whether they are of the same or opposite sex, can file a joint application for partition of their employment earnings recorded under the Québec Pension Plan for the period during which they lived in a de facto union.
Death
If a partner dies, the law does not recognize the surviving partner in a de facto union as a legal heir. As such, if the partner dies without a will, his or her estate is divided among his or her legal heirs (children or father and mother; brothers and sisters; etc.). Consequently, de facto spouses who wish to leave property to each other must do so in a will.
All rights reserved © Sabrina Di Giambattista, 2005
