Do I have to share my pension with my common-law spouse?

February 11th, 2013 by John Schuman

I’m not married – do I still have to share my pension with my common-law spouse?

The short answer is NO.

Division of assets on relationship breakdown is different depending on whether you are legally married or living in a common-law relationship.

As a common-law spouse, you must make claims in equity to share in your partner’s assets, such as a pension. The two most common claims in equity in relation to common-law spouses are constructive trust and resulting trust. These are complicated legal concepts. The Coles’ Notes version is this – constructive trust refers to the idea that the non-titled spouse somehow contributed to the acquisition or maintenance of an asset (i.e. paid mortgage payments, did housework, provided some funds for a down payment). A resulting trust refers to an “intention” for the non-titled spouse to share in the asset, which is clearly a much harder test to meet. The Courts can consider both financial contributions, and “money’s worth” contributions, or contribution of some effort that you did not get paid for, but the titled spouse would have had to pay another person to perform.

Depending on your pension plan, with the new legislation introduced in January 2012, you may be able to name your common-law spouse as the beneficiary of your pension. You should contact your pension administrator directly to obtain this information.

With respect to your Canada Pension Plan, a common-law spouse is entitled to apply for a division of your Canada Pension Plan credits upon separation, provided that you have been living together for at least one year.

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