mcphail-sharing a life.pdf - Robson Hall Faculty of Law
mcphail-sharing a life.pdf - Robson Hall Faculty of Law mcphail-sharing a life.pdf - Robson Hall Faculty of Law
112 MANITOBA LAW JOURNAL VOL 31 NO 1 amendments came into force when the Bill was passed; the remainder came into force on 1 January 2003. The Charter Compliance Act included amendments to: • The Adoption Act 6 to allow same sex common-law partners to apply jointly to adopt children in instances where opposite sex common-law partners could do so; • make various conflict of interest provisions applicable to both same sex and opposite sex common-law partners; • reinforce the applicability of The Human Rights Code 7 , in Acts containing provisions prohibiting discrimination; • enable common-law partners to claim the body of a deceased partner under The Anatomy Act 8 and make decisions about their deceased partner under The Human Tissue Act 9 ; • consider persons in same sex common-law relationships in the same way as married and opposite sex common-law couples respecting eligibility for income assistance benefits; and • enable common-law partners to change their surname on entering or leaving a common-law relationship without the need for a formal name change application. 10 The second Bill affecting common-law partners was Bill 53, The Common- Law Partners’ Property and Related Amendments Act, which extends Manitoba’s family property regime to both opposite-sex and same-sex commonlaw partners. Upon breakdown of the partnership common-law partners will be able to share in the property accumulated during the relationship, and a surviving common-law partner will have a claim to property on his or her partner’s death. Bill 53 is the primary focus of this paper. The Common-Law Partners' Property and Related Amendments Act will come into force 30 June 2004. The amendments to The Wills Act 11 that would have caused a will to be automatically revoked when a testator's cohabitant becomes his or her common-law partner 12 will not be proclaimed. The issue of 6 7 8 9 10 11 12 C.C.S.M c. A2 C.C.S.M. c. H175 C.C.S.M c. A80 C.C.S.M. c. H180 More information about the nature of the amendments in The Charter Compliance Act appears in Schedule 2, at page 23 of this paper. C.C.S.M. c. W150 Clause 25(6)(b), subsection 25(8) and clause 25(9)(a) of Bill 53, The Common-Law Partners' Property and Related Amendments Act
Rights and Obligations of Common-Law Partners 113 revocation of wills upon establishment of a common-law relationship is being considered further in the context of an ongoing Justice project reviewing wills and succession legislation in Manitoba. I. APPLICATION OF THE COMMON-LAW PARTNERS’ PROPERTY LEGISLATION A. Who is a “common-law partner”? Bill 53 creates a registry under The Vital Statistics Act 13 . Unmarried adults living in Manitoba will be able to jointly register their common-law relationship immediately upon its commencement or any time thereafter. When they register, partners must indicate the date their common-law relationship commenced. Upon registration of a relationship, Manitoba property laws will immediately apply to the partners. The Bill also amends other Manitoba legislation, so that those who register their common-law relationship will assume all the rights and obligations of “common-law partners” as soon as they register. Registered partners will be able to obtain a certificate from Vital Statistics attesting to the registration. If common-law partners do not register, they will still be governed by the property regime (and other laws applicable to common-law partners) after they have cohabited in a conjugal relationship for the time specified in the Act in question. The requisite time period needed to qualify varies in the different statutes dealing with property, with three years’ cohabitation being the most common. Cohabitation prior to the coming-into-force of the Act is included in this determination. Under the renamed Family Property Act 14 (formerly The Marital Property Act) and The Homesteads Act 15 , the requisite period of cohabitation is three years. Under The Intestate Succession Act 16 and portions of The Wills Act it is three years, or one year if there is a child of the relationship. The Pension Benefits Act 17 (and other provincial pension legislation) applies to cohabiting common-law partners after one year if neither party is married or three years if either party is married. 13 14 15 16 17 C.C.S.M. c. V60 To be referred to as chapter F25 of the Continuing Consolidation of the Statutes of Manitoba. C.C.S.M. c. H80 C.C.S.M. c. I85 C.C.S.M. c. P32
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Rights and Obligations <strong>of</strong> Common-<strong>Law</strong> Partners 113<br />
revocation <strong>of</strong> wills upon establishment <strong>of</strong> a common-law relationship is being<br />
considered further in the context <strong>of</strong> an ongoing Justice project reviewing wills<br />
and succession legislation in Manitoba.<br />
I. APPLICATION OF THE COMMON-LAW PARTNERS’ PROPERTY<br />
LEGISLATION<br />
A. Who is a “common-law partner”?<br />
Bill 53 creates a registry under The Vital Statistics Act 13<br />
. Unmarried adults<br />
living in Manitoba will be able to jointly register their common-law relationship<br />
immediately upon its commencement or any time thereafter. When they<br />
register, partners must indicate the date their common-law relationship<br />
commenced. Upon registration <strong>of</strong> a relationship, Manitoba property laws will<br />
immediately apply to the partners. The Bill also amends other Manitoba<br />
legislation, so that those who register their common-law relationship will<br />
assume all the rights and obligations <strong>of</strong> “common-law partners” as soon as they<br />
register. Registered partners will be able to obtain a certificate from Vital<br />
Statistics attesting to the registration.<br />
If common-law partners do not register, they will still be governed by the<br />
property regime (and other laws applicable to common-law partners) after they<br />
have cohabited in a conjugal relationship for the time specified in the Act in<br />
question. The requisite time period needed to qualify varies in the different<br />
statutes dealing with property, with three years’ cohabitation being the most<br />
common. Cohabitation prior to the coming-into-force <strong>of</strong> the Act is included in<br />
this determination.<br />
Under the renamed Family Property Act 14 (formerly The Marital Property<br />
Act) and The Homesteads Act 15 , the requisite period <strong>of</strong> cohabitation is three<br />
years. Under The Intestate Succession Act 16 and portions <strong>of</strong> The Wills Act it is<br />
three years, or one year if there is a child <strong>of</strong> the relationship. The Pension<br />
Benefits Act 17 (and other provincial pension legislation) applies to cohabiting<br />
common-law partners after one year if neither party is married or three years if<br />
either party is married.<br />
13<br />
14<br />
15<br />
16<br />
17<br />
C.C.S.M. c. V60<br />
To be referred to as chapter F25 <strong>of</strong> the Continuing Consolidation <strong>of</strong> the Statutes <strong>of</strong><br />
Manitoba.<br />
C.C.S.M. c. H80<br />
C.C.S.M. c. I85<br />
C.C.S.M. c. P32
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