Quebec - De facto Union

De facto union

It is now common in our society for two people to live together without being married or joined in a civil union. Their choice of lifestyle is known as a de facto union.

Do partners in a de facto union have rights, and do they have any obligations towards each other and their children? Where does the law stand on this type of union?

These questions and many others will no doubt be of interest to you; let us take a closer look at some of them.

• De facto union and the law
• Protect yourself
• Contract for living together
• Family residence
• Children
• Breakup or death
• Your rights and freedoms

De facto union and the law

In the Civil Code of Québec, a deliberate choice has been made not to subject couples living in a de facto union to the same rights and responsibilities as couples who are married or joined in a civil union, regardless of the number of years they have lived together. In other words, the law respects their choice of lifestyle.

However, although the Civil Code does not generally regulate the status of couples in a de facto union, certain laws view de facto spouses, whether of the same or the opposite sex, as a couple, particularly those governing social assistance, legal aid, income tax, the Québec Pension Plan and workers’ compensation. As the terms and requirements of these laws vary greatly, you should contact the various government departments and agencies which administer them to find out how they apply to you.

Protect yourself

Your decision to live in a de facto union may well reflect a desire to base your lifestyle on principles of equality and free choice. 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.

Verbal agreements can be disputed. It is a good idea to set down, in writing, your respective positions in a contract for living together, which you are advised to sign before a notary or a lawyer, once you have found out about your rights and obligations.

This contract cannot be altered or terminated by either spouse acting alone. However, depending on circumstances and events, you and your spouse can make changes which are mutually acceptable at any time. 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.

The contract for living together can cover any aspect of daily life, establish terms and conditions relating to children or the family residence, and even include provisions that will apply if your relationship breaks down, or if one of you dies.

Contract for living together

Property

A contract for living together may specify the exact value of each spouse’s assets, with a list of all household goods and the name of the owner(s). A car, cottage, and furniture are major items, but it might be just as important to keep an account of all smaller items (linens, dishes, etc.), whose combined value may be considerable. It is in the interest of both spouses to identify and keep their own bills, for if one spouse sells or gives away property belonging to the other, or to both of them, the other spouse 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.

Sharing of responsibilities

You can also agree on each spouse’s contribution to household expenses and shared responsibility for any debts you may have. You should be careful not to allocate the entire income of one spouse to a single item, such as groceries or childcare – you are free to choose the terms of the agreement, but it must be fair if disputes are to be avoided.

Power of attorney

When entering into a contract before a notary or lawyer, it is advisable to sign a power of attorney authorizing each spouse to act on the other’s behalf under “special’’ circumstances. Should one of you suffer a serious illness or accident, this power of attorney could prove indispensable in settling certain affairs such as the sale of a house. Your relationship is not legally recognized, so why run the risk of finding yourself entangled in legal problems?

Gifts

You can take advantage of a contract for living together to specify any gifts you intend to make to each other. For example, one spouse may promise to pay the other $15,000 on reaching retirement, or to give a cottage as a gift. Perhaps the promised amount cannot be paid, or the cottage has already been sold to someone else, but in the latter case, although the agreement to sell cannot be broken, the injured party will be entitled to claim damages and interest.

Family residence

A couple living in a de facto union is 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. You may not register a declaration of family residence; consequently, one de facto spouse may sell or rent the residence of which he or she is the sole owner without telling the other spouse.

Joint ownership

In a de facto union, joint ownership of a house is the best mutual protection two people can give each other. The same holds true for the purchase of other buildings or land. In general, joint ownership of a couple’s home or other property is established by way of a notarized contract.

If a mortgage loan must be taken out to purchase a house, the couple’s ability to repay, and not their marital status, serves as the lending institution’s main criterion for deciding whether to grant the loan.

In the event of a breakup, the contract for living together can provide for the purchase by one spouse of the other’s share, or perhaps for a right of residence or even the transfer of full ownership to the spouse who has custody of the children.

Joint leases

With respect to housing, the only “protection’’ provided in the Civil Code of Québec for couples living in a de facto union is the right, for the spouse who has been left, to continue occupying the dwelling in which the couple lived before the breakup even though he or she did not sign the lease. To take advantage of this right, the spouse must have lived in the dwelling with the actual tenant for at least six months and still be living in it, and the landlord must be notified within two months of the departure of the spouse who signed the lease.

Children

Rights and obligations

Parents, whether they are married, joined in a civil union or living in a de facto union, have the same rights and obligations with respect to their children.

All children are equal in the eyes of the law, regardless of their parents’ marital status, and all are legally entitled to inherit the estate of their parents, grandparents, etc., unless excluded from a will. In addition, their parents must provide for their basic needs, in other words education, a home, food and clothes.

The only legal requirement for a child to inherit the estate of his or her parents or grandparents is that filiation be clearly established, in other words that the father and mother can be positively identified.

Acknowledgment of children

Contrary to a widespread belief, parents who are not married or joined in a civil union are not required to adopt their child in order to have him or her recognized as their own.

At the time of birth, both the mother and father must complete and sign a declaration of birth before a witness, who will also sign it. This declaration constitutes an acknowledgment of the child.

The declaration of birth indicates the place of birth, the last names and given names of the child, the sex of the child, the date and time of birth, the parents’ marital status and relationship with the child, as well as the address of the parents’ domicile and that of the witness.

Within thirty days of the birth, the parents are required to send the declaration of birth to the Registrar of civil status, along with a copy of the attestation of birth given to the parent(s) by the physician or any other person who attended the birth.

You may specify in your contract for living together that a decision that one of the spouses will take care of the couple’s children full-time will be made by mutual consent, perhaps with financial or other compensation for the contribution to the family’s well-being. You may also agree to invest certain sums of money for the future needs of your children (for example, by investing your family allowances to provide for their education).

Moreover, in the event of a breakup, you may provide for compensation, with guarantees of payment, for the parent who will have custody of the children.

Breakup or death

The provisions of the Civil Code of Québec concerning the family patrimony do not apply to couples living in a de facto union. It is important for de facto spouses to ensure a fair division of their property, by means of a written document and a detailed will, to prevent the many different problems that may occur following a breakup or death.

Breakup

In the event of a breakup, the 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: gifts, division of property, lump sum payments, etc.

If there is a contract, it must be respected by both parties; if it is not respected, an appeal may be made to the court to have it enforced. The only clauses of the contract which may be altered by the judge, should court intervention be required, are those involving the rights and well-being of the children (child support, custody, visiting rights, etc.).

The settlement may also be made by means of an agreement of dissolution reached by the de facto spouses with or without the assistance of a mediator, notary or lawyer, whether or not they have entered into a contract for living together during the period of cohabitation.

This agreement sets out the terms and conditions regarding the division of property, custody of the children and the applicable child-support payments. The access rights of the parent who does not have custody of the children may also be set out in this agreement. In working out an agreement of dissolution you may seek the aid of a family mediator or legal advisor. As a last recourse, you may take your case to court.

When cohabitation ends, no matter how long it lasted, de facto spouses do not have to make any support payments to one another. For example, even though you are in need and your ex-spouse earns a high income, you may not claim any support payments to provide for your own needs. 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. Before making a decision on the matter, it would be advisable to apply to the Régie des rentes du Québec for a simulation of the effects of the partition. This service is offered free of charge. You can download the Application for simulated partition of employment earnings or click here to order a copy.

Death

If one of the spouses dies, the law does not recognize the surviving spouse in a de facto union as a legal heir. If the spouse dies without a will, the estate is divided among the legal heirs of the deceased spouse (children or father and mother; brothers and sisters; etc.), according to the rules in the Civil Code of Québec that deal with successions. Thus, de facto spouses who wish to leave property to each other must do so in a will.

Only a surviving de facto spouse who has been named as a beneficiary is entitled to the proceeds of a life insurance policy.

Since access to a joint bank account and safety deposit box is blocked until the final settlement of the deceased’s estate, it is advisable to have separate accounts and safety deposit boxes. Furthermore, when the safety deposit box contains bearer bonds, jewellery or money, there is a risk that this property may be included in the estate if ownership cannot be proven.

Your rights and freedoms

In Québec, there are four laws confirming the basic rights and freedoms of the individual and prohibiting discrimination: