In New Brunswick, common-law partners do not have an automatic right to an equal 50/50 property split. However, you may claim spousal support if you lived together continuously for three years (during which time one person was substantially dependent on the other) or in a relationship of some permanence if you share a child, provided you apply within one year of separating. All family matters are filed at the Court of King’s Bench, with an initial filing fee of $75 CAD.
Navigating a separation is emotionally challenging, especially when you are in a common-law relationship. Many people mistakenly believe that living together for several years grants them the exact same legal rights as legally married couples. Under the New Brunswick Family Law Act, this is simply not true. Whether you reside in Moncton, Fredericton, or Saint John, understanding your specific rights and obligations is crucial for a fair financial transition.
This comprehensive guide will explain the legal requirements for common-law separation in New Brunswick, how to protect your hard-earned assets, and when you should seriously consider reaching out to a local family law firm for independent legal advice.
Step-by-Step Process for Common-Law Separation in New Brunswick
The separation process in this province involves several important stages. Because common-law couples are treated differently than married couples under the law, taking the right strategic steps can help secure your financial future and parental rights.
Step 1: Determine Your Legal Common-Law Status
Before making any legal claims, you must firmly establish that your relationship actually qualifies as common-law under provincial legislation. In New Brunswick, under the Family Law Act, spousal support obligations only apply to common-law partners who have cohabited continuously in a conjugal relationship for at least three years during which time one person has been substantially dependent on the other for support. If you and your partner share a child, there is no minimum three-year cohabitation or financial dependence requirement; you must simply cohabit in a relationship of some permanence and be the parents of that child.
Crucially, unmarried partners face a strict limitation period that does not apply to married spouses: you must formally apply to the court for spousal support within exactly one year of your separation date. If you miss this one-year window, you completely lose your legal right to claim support.
Documenting your cohabitation timeline is essential. You should gather shared lease agreements, utility bills in both names, and joint bank account statements to effectively prove to the court when your relationship officially began.
Step 2: Arrange Parenting Time and Child Support
If you have children together, the legal system makes absolutely no distinction between married and unmarried parents. Both parents have a strict, ongoing legal obligation to financially support their children. Child support is calculated using the Federal Child Support Guidelines, based almost entirely on the paying parent’s annual income as reported to the CRA and the province of residence.
You and your ex-partner must also decide on decision-making responsibility (formerly known as custody) and parenting time (formerly access). If you simply cannot agree, a judge at your local Court of King’s Bench will make a final order based entirely on the best interests of the child 👪.
Step 3: Navigate Property Division and Unjust Enrichment
This is where common-law couples face the most significant difference compared to married couples. The New Brunswick Marital Property Act does not apply to common-law partners. This realistically means you do not have an automatic right to a 50/50 split of the family home, pensions, or joint savings.
Generally, each person leaves the relationship with whatever is strictly in their own name. However, if you contributed significantly to an asset owned solely by your partner (such as paying the monthly mortgage or actively renovating a house), you may be able to make a trust claim . This is legally known as “unjust enrichment.” This is a highly complex area of common law, and seeking advice from a local lawyer is highly recommended to protect your equity.
Step 4: Draft a Binding Separation Agreement
The most effective, stress-free way to resolve common-law separation issues is by drafting a comprehensive Separation Agreement. This is a legally binding contract that clearly outlines how you will handle property, shared debts, child support, and spousal support without ever needing to go to trial.
To ensure the agreement is fully enforceable at the Court of King’s Bench, both parties must obtain independent legal advice (ILA) from separate lawyers before signing ✍. This legally guarantees that neither party was coerced and that both fully understood the long-term terms they agreed to.
| Feature | Common-Law Partners in NB | Married Couples in NB |
|---|---|---|
| Property Division | No automatic right to divide assets. Relies on trust claims. | Equal 50/50 division under the Marital Property Act. |
| Matrimonial Home | Belongs strictly to the person on the deed or lease. | Both have an equal legal right to stay, regardless of title. |
| Spousal Support | Eligible after 3 years (if one partner was substantially dependent on the other for support) or immediately if sharing a child in a permanent relationship. Must apply within 1 year of separation. | Eligible immediately upon separation, with no strict 1-year deadline. |
How Much Does it Cost in New Brunswick?
The total costs associated with a common-law separation vary widely depending entirely on how amicable the split is. Here is a general breakdown of potential fees you might encounter in the province:
- Drafting a Separation Agreement: A local family lawyer typically charges between $1,500 and $3,500 CAD to properly negotiate and draft a standard out-of-court agreement.
- Independent Legal Advice (ILA): Having a lawyer review a pre-drafted agreement usually costs between $300 and $600 CAD.
- Court Filing Fees: If you must go to court, filing a Notice of Application (Form 73A) at the Court of King’s Bench costs approximately $75 CAD.
- Litigation Fees: If your dispute goes to a full trial, legal fees can quickly exceed $15,000 CAD per person, which is why avoiding court is highly advised.
How Long Does the Process Take?
If you and your partner agree on the major issues, negotiating and finalizing a Separation Agreement can take as little as 4 to 8 weeks. However, if there are significant legal disputes regarding unjust enrichment claims, spousal support entitlement, or parenting time schedules, resolving the matter through the New Brunswick court system can realistically take anywhere from 12 to 24 months from the initial filing to a final order.
Frequently Asked Questions (FAQ)
Am I legally entitled to half of my partner’s pension?
No, not automatically. Unlike married couples, common-law partners in New Brunswick do not have an automatic right to divide a workplace pension or RRSP. You would need to negotiate this in a detailed separation agreement or aggressively pursue a trust claim in court.
Who gets to stay in the shared house?
Typically, the specific person whose name is on the legal title or lease has the right to stay. If both names are explicitly on the deed, neither person can legally force the other out without a formal court order from a judge.
Do we actually have to go to court to separate legally?
No. Most common-law couples in Canada successfully resolve their issues out of court through mediation or collaborative family law, which saves substantial time, money, and emotional distress.
Is my common-law status recognized by the CRA?
Yes. The Canada Revenue Agency (CRA) considers you common-law for tax purposes after just one continuous year of living together, which differs sharply from New Brunswick’s strict three-year family law rule.
Can I stop my ex from taking our child out of the province?
If there is no formal parenting order or agreement in place, technically both parents have equal rights. However, travelling outside New Brunswick with a child usually requires a consent letter from the other parent to avoid severe legal complications or claims of abduction.
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