Common law partners

(a) What is the definition of common-law partner in Nova Scotia?

Summary

In Nova Scotia, a “common-law partner” means an individual who has cohabited with another individual in a marriage-like but not marital relationship, regardless of the gender of the two persons.

Discussion

The requisite time period for cohabitation differs based on the relevant legislation and purpose. The typical requirement is to have lived together in a conjugal relationship for two years, or have lived together and have a child together (e.g. Maintenance and Custody Act, RSNS 1989, c 160). However, under other pieces of legislation, the time period may be different. For example, under the Insurance Act, RSNS 1989, c 231, common-law partners are only required to have lived together in a conjugal relationship for at least one year.

However, couples who are not legally married can register a declaration that they are living in a “domestic partnership” under the Vital Statistics Act (RSNS 1989, c 494), giving the couple many if not all of the same rights as a legally married couple have in the province (“RDP”). In order to register as an RDP under the Act, the couple must be cohabiting, or intend to cohabit, in a conjugal relationship.

(b) What rights do common-law partners have to property on death, including property that was owned by one partner prior to the relationship and property that was jointly acquired?

Summary

Except for jointly owned property, common-law partners have no rights to property in Nova Scotia. However, RDPs have substantial proprietary rights, including the ability to claim for division of assets, take a portion of the estate as provided in a Will, inherit property and make claims in Court for relief as a dependant.

Discussion

On the death of one partner, RDPs will inherit on intestacy as a legally married spouse would (Intestate Succession Act, RSNS 1989, c 236). Further, RDPs can make a claim under the Testators Family Maintenance Act if they feel the deceased partner did not adequately provide for them in a Will. They can also choose to take the portion of the estate of the deceased partner as provided in a Will, or make a claim under the Matrimonial Property Act (RSNS 1989, c 275) for a division of assets. None of these rights are afforded to non-registered common-law partners in Nova Scotia (common-law spouses are not recognized under these statutes). Jointly owned property becomes the property of the surviving common-law partner by right of survivorship. Otherwise, the surviving common-law partner would have to advance a claim based on the equitable doctrine of constructive trust.