My common law spouse and I are separating in Nova Scotia. What do I need to do?

Separation can be a very emotional time. Even when people part ways on good terms, it can be difficult to make rational decisions. If possible, we recommend contacting three key professionals – a therapist, an accountant, and of course, a lawyer.

Common law relationships are viewed differently in the law than legal marriages

Common law relationships are treated very differently from legal marriages in Nova Scotia. They are not governed by Nova Scotia’s Matrimonial Property Act.

Because common law spouses aren’t protected by the Matrimonial Property Act (the law that talks about how married people’s property is divided), a separation agreement is usually the way that most common law partners, including those in same-sex relationships resolve the division of assets and debts.

Assets are presumed to be shared equally in Divorce (legal marriage)

If you are married, the default is any property (land or personal property) that is owned by both of you is presumed to be divided equally between you. A common way for people to do this is to make a list of everything they own together, agree on the value of it, and divide things up so that each person gets assets of equal value. Alternatively, you can sell assets and divide the proceeds from the sale, or a combination of both.

Debts are presumed to be shared equally in Divorce (legal marriage)

A similar process happens with the debts that are in both names. The separating couple makes a list of the debts, and divides up who pays what. Sometimes, especially if the debt is tied to a home or a vehicle, the parties agree to sell the asset to pay the debt and divide the proceeds, but others may refinance in their own name.

Laws about division of pensions, support, etc., vary depending on things like how long the couple has been together, whether there are children, and the respective incomes of the parties.

Equal division is not the default for Common Law relationships

In Nova Scotia, if you are not married, none of those presumptions apply. In the eyes of the law, by default, division of your assets and debts is viewed as if you are roommates. What’s yours (on paper) is yours and what’s theirs is theirs. So for example if the credit card is in your name, by default that debt belongs to you, even if it was joint family debt.

Separation Agreement to divide assets and debts in a common law relationship

In a breakdown of a Common Law relationship, parties will have to agree between themselves, using a Separation Agreement, who will get which assets and carry which debts.

Court Application for Division if no Agreement

In Nova Scotia, if the parties in a common law relationship can’t agree how to divide their debts and assets a court application has to be made. Each party can try to prove to the court what was agreed upon by the parties during the relationship as to who is entitled to what. The idea that one party ‘owns’ something on paper even though the other party has rights to it is called ‘constructive trust’.

Unless things are extremely clear, the court will generally order that all assets are sold, debts paid, and the proceeds divided depending on the facts of that particular circumstance. In limited circumstances, the court may order that one party can occupy the home, usually if there are children involved, but only temporarily.

Financial Disclosure by both parties is critical

Most importantly, make sure all relevant financial information has been shared and you have reviewed and understand all of it. It will help you to ensure you are making an informed decision. Full financial disclosure will also eliminate the possibility that your ex can claim the separation agreement should not be binding because they were kept in the dark as to the true financial picture.

Legal Advice Strongly advised

What you are actually entitled to under the law may not match with what you understand from talking to friends or watching TV etc. It may also be different from province to province and certainly from other countries. For that reason, before agreeing to anything upon separation, it is highly advisable to at least consult with a lawyer to understand your rights.

By: Anastacia DesLauriers – Lawyer

Have Questions For Us?:

If you have any questions about Family Matters you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Family Matter Consult for $500+HST where you have the opportunity to explain your situation to a lawyer and get basic advice, including a written summary of your options, before deciding whether or not you'd like to retain us.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers