Common Law Marriage Divorce in New Brunswick: 2026 Complete Legal Guide
Author: Antonio G. Jimenez, Esq. | Florida Bar No. 21022 | Covering New Brunswick divorce law
New Brunswick does not recognize common law marriage, meaning unmarried partners cannot obtain a "divorce" through the courts. The New Brunswick Marital Property Act, SNB 1980, c. M-1.1 explicitly excludes common law couples from its property division framework, leaving separating partners without the automatic 50/50 asset split that married spouses receive. However, under the Family Law Act, SNB 2020, c. 23, common law partners who cohabited for at least 3 continuous years or who share a child may claim spousal support. Property claims require proving unjust enrichment through complex litigation, typically costing $15,000 to $75,000 in legal fees.
Key Facts: Common Law Separation in New Brunswick
| Factor | Details |
|---|---|
| Filing Fee | $75 (parenting/support application); $110 (divorce petition for married couples) |
| Residency Requirement | 1 year for divorce; child's primary residence for parenting orders |
| Spousal Support Eligibility | 3 years continuous cohabitation OR any duration with child together |
| Property Division | Not automatic; requires unjust enrichment claim |
| Parenting Orders | Same as married parents; best interests of child standard |
| Child Support | Same as married parents; Federal Child Support Guidelines apply |
| Cohabitation Agreement | Legally enforceable under Marital Property Act |
What Is a Common Law Relationship Under New Brunswick Law?
A common law relationship exists when two unmarried people cohabit in a conjugal relationship, according to the Family Law Act, SNB 2020, c. 23, s. 1. New Brunswick courts recognize a couple as common law partners after living together continuously for 3 years, or after any period of cohabitation if they share a child together. Unlike provinces such as British Columbia, Alberta, or Manitoba, New Brunswick has not extended statutory property division rights to unmarried couples regardless of relationship duration.
The distinction between married and common law status carries profound financial consequences in New Brunswick. Married spouses receive automatic entitlement to equal division of marital property under the Marital Property Act. Common law partners receive no such entitlement, even after 20 or 30 years of cohabitation. This gap in legal protection makes New Brunswick one of the least protective jurisdictions in Canada for common law partners seeking property division upon separation.
New Brunswick's legal framework creates a two-tier system where relationship length becomes irrelevant for property purposes. A couple married for 6 months has more property rights than an unmarried couple who lived together for 25 years. The only avenue for property claims by common law partners is through equitable remedies such as unjust enrichment, which requires expensive litigation and produces uncertain outcomes.
Why Common Law Partners Cannot Get a "Divorce" in New Brunswick
The federal Divorce Act, R.S.C. 1985, c. 3 applies exclusively to legally married couples, meaning common law partners cannot file for divorce in any Canadian province. New Brunswick common law partners seeking to end their relationship must instead apply to the Court of King's Bench, Family Division under provincial legislation for spousal support, parenting orders, and child support. Property disputes require a separate civil action for unjust enrichment or constructive trust.
Filing fees reflect this legal structure. A divorce petition under the federal Divorce Act costs $110 in New Brunswick, filed at the Court of King's Bench, Family Division. Common law partners seeking parenting orders and support pay $75 for a family law application. Property claims through unjust enrichment proceedings carry standard civil litigation filing fees plus potentially substantial disbursements for expert evidence on property valuation.
The procedural difference extends to court timelines. Uncontested divorces for married couples typically conclude within 4 to 6 months in New Brunswick. Common law property disputes often require full trials, with wait times of 12 months or longer in high-volume centres like Moncton and Saint John. The absence of legislative presumptions means every property claim becomes fact-intensive litigation rather than formulaic division.
Spousal Support Rights for Common Law Partners in New Brunswick
New Brunswick extends full spousal support rights to qualifying common law partners under the Family Law Act, SNB 2020, c. 23, Part V. Common law partners become eligible for spousal support after cohabiting continuously for 3 years with substantial financial dependency, or after any duration of cohabitation if they share a child together. Once eligibility is established, courts apply identical analysis for amount and duration as for married spouses.
The support calculation follows the federal Spousal Support Advisory Guidelines, producing ranges based on income differential and relationship length. A New Brunswick common law partner earning $30,000 annually after a 10-year relationship with a partner earning $100,000 might receive monthly support between $1,458 and $1,944, lasting 5 to 10 years. The guidelines provide structure while allowing judicial discretion for factors like health, age, and employment prospects.
Factors the court considers include the length of cohabitation, the accustomed standard of living, and any sacrifices made for the relationship. A common law partner who left employment to care for children or who relocated for their partner's career receives consideration for those contributions. The Family Law Act, s. 54 specifically directs courts to examine career potential sacrificed and earning capacity affected by relationship responsibilities.
Support waivers in cohabitation agreements receive scrutiny before enforcement. Courts may set aside support waivers that produce unconscionable circumstances, particularly where one partner provided independent legal advice while the other did not. The prudent approach involves both partners obtaining independent lawyers and including full financial disclosure when executing any domestic contract.
Property Division for Common Law Partners: The Unjust Enrichment Framework
Common law property division in New Brunswick requires proving unjust enrichment, a three-part legal test established by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10. The claimant must demonstrate that their partner was enriched, that they suffered a corresponding deprivation, and that no legal reason justified the enrichment. Success entitles the claimant to compensation proportionate to their contributions, not automatic 50/50 division.
The enrichment element encompasses both direct and indirect contributions. Direct contributions include down payments, mortgage payments, renovation costs, and property tax payments. Indirect contributions include homemaking, childcare, and domestic labour that enabled the other partner to accumulate wealth. New Brunswick courts recognize that unpaid domestic work creates value, following Supreme Court of Canada precedent.
The remedy for proven unjust enrichment takes two forms. Monetary compensation represents the value survived approach, quantifying the claimant's contributions and any increase in value those contributions generated. Constructive trust provides an ownership interest in specific property, typically awarded when monetary damages prove inadequate. Courts impose constructive trusts where a direct connection exists between the contributions and the property claimed.
Joint family venture analysis strengthens unjust enrichment claims. Courts examine four factors: mutual effort toward common goals, economic integration of finances, actual intent to treat the relationship as a partnership, and priority given to family over individual interests. Establishing joint family venture shifts the remedial analysis toward value sharing rather than value received, potentially increasing recovery. However, proving common law status alone does not establish joint family venture.
Cost Comparison: Common Law Separation vs. Divorce Litigation
| Item | Married Divorce | Common Law Separation |
|---|---|---|
| Filing Fee | $110 | $75 (support/parenting) + civil filing (property) |
| Simple Uncontested Matter | $2,000 - $5,000 | $3,000 - $8,000 |
| Contested With Property | $15,000 - $40,000 | $25,000 - $75,000 |
| Timeline (Uncontested) | 4 - 6 months | 6 - 12 months |
| Timeline (Contested Trial) | 12 - 24 months | 18 - 36 months |
| Property Valuation Expert | $2,500 - $7,500 | $3,500 - $10,000 |
| Outcome Certainty | High (legislative formula) | Low (fact-dependent) |
Common law property litigation carries significantly higher costs due to the evidentiary burden. Married couples divide property according to legislative formulae requiring minimal evidence beyond valuation. Common law partners must document every contribution, trace financial flows, prove the partner's enrichment, and establish the absence of any gift intention. This documentation often requires forensic accounting.
Legal fees reflect the complexity differential. A straightforward common law separation with agreed terms costs $3,000 to $8,000 for document preparation and court filing. Contested property claims requiring trial preparation, discovery, and expert evidence regularly exceed $50,000 per party. High-value disputes involving businesses, professional practices, or real estate portfolios have generated legal costs exceeding $150,000.
Parenting Arrangements for Common Law Partners
New Brunswick treats married and common law parents identically for parenting orders. The Family Law Act, SNB 2020, c. 23, Part III governs parenting time and decision-making responsibility using the best interests of the child standard. Whether parents married or cohabited, courts apply the same analysis, the same factors, and the same child-focused terminology introduced by the 2021 federal Divorce Act amendments.
The court examines numerous factors when determining parenting arrangements. Primary considerations include the child's physical, emotional, and psychological needs, each parent's willingness to support the child's relationship with the other parent, and any history of family violence. Secondary factors include the child's existing relationships, school and community connections, and each parent's past involvement in caregiving.
Parenting orders specify decision-making responsibility allocation and parenting time schedules. Decision-making responsibility covers major decisions about health, education, religion, and extracurricular activities. Parenting time establishes the physical care schedule. New Brunswick courts regularly order shared parenting time where both parents have demonstrated capability and the arrangement serves the child's interests.
Filing a parenting application in New Brunswick costs $75 plus service fees. Applications are filed in the Court of King's Bench, Family Division for the judicial district where the child primarily resides. Court processing times vary significantly by location, with Moncton and Saint John experiencing delays of 12 months or more for trials while smaller judicial districts may schedule hearings within 6 months.
Child Support Obligations for Common Law Parents
Child support obligations apply equally to married and common law parents in New Brunswick. The Family Law Act, SNB 2020, c. 23, s. 5 establishes that every parent must support their child to the extent of their ability, regardless of marital status. The right to support belongs to the child, not the receiving parent, making it non-waivable in any separation agreement.
The Federal Child Support Guidelines, SOR/97-175, provide the calculation framework. New Brunswick uses federal tables specific to provincial income tax rates. The payor's gross annual income determines a base monthly amount, with the October 2025 updated tables reflecting 2023 tax rules. The minimum income threshold attracting a support obligation is $16,000 annually under the 2025 tables, increased from $13,000 under the previous version.
For a payor earning $75,000 annually with one child, the 2025 New Brunswick table amount is approximately $689 per month. Two children at the same income level would generate support of approximately $1,061 monthly. These amounts may be adjusted for extraordinary expenses under section 7, including childcare, medical costs, and educational expenses, which parents typically share proportionate to income.
Shared parenting arrangements where each parent has the child at least 40% of the time trigger section 9 calculations. Courts consider both incomes, actual spending patterns, and each parent's ability to meet the child's needs. The simple table amount gives way to a more complex analysis that often produces support amounts different from straight guideline calculations.
Cohabitation Agreements: Essential Protection in New Brunswick
Cohabitation agreements provide the only reliable property protection for common law partners in New Brunswick. The Marital Property Act, SNB 1980, c. M-1.1, s. 41 expressly permits domestic contracts between unmarried cohabitants, creating enforceable rights and obligations that the law does not otherwise provide. Without such an agreement, partners rely entirely on uncertain equitable claims.
Valid cohabitation agreements require written form, signatures from both parties, and independent witnessing. While not legally required, independent legal advice for each party substantially increases enforceability. A court may disregard provisions where one party did not receive legal advice and subsequently challenges the agreement. The cost of independent legal advice, typically $500 to $1,500 per party, represents minimal insurance against future disputes.
Cohabitation agreements commonly address property ownership, income and expense sharing during the relationship, property division upon separation, and spousal support rights and waivers. Partners cannot contract out of child support obligations or make binding parenting arrangements, as these matters require court determination based on the child's best interests at the time of separation.
If partners later marry, their cohabitation agreement automatically converts to a marriage contract under New Brunswick law. This conversion maintains contractual protections without requiring execution of a new document. Partners who wish different terms upon marriage should execute a fresh marriage contract explicitly superseding the cohabitation agreement.
Pension Division for Common Law Partners
New Brunswick extends pension division rights to common law partners under specific circumstances. The Pension Benefits Act, SNB 1987, c. P-5.1 allows division of pension credits accumulated during cohabitation of at least 2 continuous years. The Canada Pension Plan provides division of CPP credits after 12 consecutive months of cohabitation. These statutory rights exist independently of any property claim.
Employer pension division requires application to the pension plan administrator. The common law partner must provide evidence of the relationship, including shared residence documentation, joint financial accounts, or beneficiary designations. The administrator calculates the member's credited service during cohabitation and divides that portion according to formula.
CPP credit splitting divides contributions made by both partners during cohabitation. Either partner may apply to Service Canada for division, which occurs automatically upon application without requiring the other partner's consent. The division affects future CPP retirement, disability, and survivor benefits for both partners.
Pension division rights complement rather than replace property claims. A common law partner may pursue unjust enrichment regarding the family home while simultaneously applying for statutory pension division. The remedies address different assets and do not create double recovery concerns.
Steps to Legally Separate as Common Law Partners in New Brunswick
- Document your separation date and living arrangements
- Gather financial records: bank statements, property deeds, investment accounts, pension statements
- Prepare inventory of assets acquired during cohabitation and their current values
- Calculate income for child support using tax returns and pay statements
- Consult a family lawyer about spousal support eligibility and property claims
- Negotiate a separation agreement if possible, addressing support, property, and parenting
- File applications for parenting orders and support if agreement cannot be reached
- Consider unjust enrichment claim if significant property contributions exist
- Apply for pension division where eligible
- Register any support agreement with the Office of Support Enforcement
The separation process timeline varies dramatically based on complexity and cooperation. Partners reaching early agreement may finalize their separation within 3 to 6 months. Contested matters requiring trial regularly extend beyond 2 years, particularly in high-volume judicial districts. The absence of legislative shortcuts for property division means every disputed asset requires evidence and argument.
Inheritance Rights for Common Law Partners
New Brunswick intestacy law excludes common law partners from automatic inheritance. The Devolution of Estates Act, RSNB 1973, c. D-9 defines "spouse" as legally married spouse only. If a common law partner dies without a will, the surviving partner receives nothing under intestate succession regardless of relationship duration or contributions to the deceased's estate.
The Provision for Dependants Act, RSNB 1973, c. P-18 offers limited protection. A surviving common law partner who qualifies as a dependant under the Family Law Act may apply to court for reasonable maintenance and support from the estate. This claim requires proving dependency at the time of death and may result in periodic payments rather than capital distribution. The remedy addresses immediate needs rather than partnership interests.
Estate planning becomes essential for common law partners seeking inheritance protection. Properly executed wills, beneficiary designations on registered accounts and life insurance, and joint ownership of property can achieve outcomes equivalent to married spouses. Without deliberate planning, the common law partner's contributions during the relationship provide no claim against the deceased's estate beyond dependant support.
Recent Legal Developments Affecting New Brunswick Common Law Partners (2024-2026)
The October 2025 Federal Child Support Guidelines update changed support calculations for New Brunswick families. The minimum income threshold increased from $13,000 to $16,000 annually, exempting lower-income payors from table-amount obligations. Support amounts throughout the income spectrum shifted based on 2023 tax rules rather than the previously used 2017 framework.
New Brunswick's Family Law Act, SNB 2020, c. 23 remains the governing provincial legislation, having replaced portions of the former Family Services Act. The 2020 statute adopted terminology consistent with the 2021 federal Divorce Act amendments, using "parenting time" and "decision-making responsibility" rather than the former "custody" and "access" language. This harmonization ensures consistent treatment whether parents divorced under federal law or separated under provincial law.
No legislative movement has occurred toward extending property division rights to common law partners in New Brunswick. Unlike British Columbia, Alberta, or Manitoba, New Brunswick has not introduced reforms expanding the Marital Property Act to include unmarried cohabitants. Common law property claims continue to require unjust enrichment litigation with all its associated costs and uncertainties.
Frequently Asked Questions
How long do you have to live together to be common law in New Brunswick?
New Brunswick recognizes common law partnerships after 3 years of continuous cohabitation under the Family Law Act, SNB 2020, c. 23. Partners who share a child together qualify immediately regardless of cohabitation duration. This status affects spousal support eligibility and pension division rights but does not create property division entitlements.
Can a common law partner claim half of property in New Brunswick?
No automatic entitlement to equal property division exists for common law partners in New Brunswick. The Marital Property Act applies only to married spouses. Common law partners must prove unjust enrichment through litigation, demonstrating specific contributions and corresponding deprivation. Successful claims receive compensation proportionate to contributions, not presumptive 50/50 division.
What is a common law partner entitled to in New Brunswick?
Common law partners in New Brunswick may claim spousal support after 3 years of cohabitation or any duration with a shared child. They receive equal parenting rights, child support obligations, and pension division after 2 years of cohabitation. Property claims require proving unjust enrichment. These rights compare unfavorably to married spouses' automatic property division entitlements.
How do I protect my assets in a common law relationship in New Brunswick?
Execute a cohabitation agreement with your partner addressing property ownership, division upon separation, and support obligations. Maintain separate accounts for assets you wish to protect. Document contributions to joint assets carefully. Obtain independent legal advice before signing any domestic contract. Consider registering property in your individual name rather than jointly.
Do common law partners have to pay spousal support in New Brunswick?
Yes, the Family Law Act creates identical support obligations for qualifying common law partners as for married spouses. After 3 years of continuous cohabitation with substantial dependency, or any duration with a shared child, courts apply the same support analysis. Amount and duration follow the Spousal Support Advisory Guidelines, producing ranges based on income differential and relationship length.
How long does a common law separation take in New Brunswick?
Uncontested common law separations with agreed terms typically conclude within 6 to 12 months. Contested matters requiring trial extend to 18 to 36 months, particularly in busy judicial districts like Moncton and Saint John. Property disputes involving unjust enrichment claims add complexity and duration. Simple parenting applications may resolve more quickly than property litigation.
Can I sue my common law partner for property in New Brunswick?
Yes, through an unjust enrichment claim filed in the Court of King's Bench. You must prove your partner was enriched by your contributions, you suffered corresponding deprivation, and no legal justification exists for the enrichment. Successful claims result in monetary compensation or constructive trust over specific property. Litigation costs typically range from $25,000 to $75,000.
What happens to the house when common law partners separate in New Brunswick?
Ownership follows legal title. If the house is in one partner's name, that partner owns it entirely absent a successful unjust enrichment claim. Joint title typically results in equal ownership. If one partner contributed disproportionately to a jointly-owned property, they may claim unjust enrichment for their excess contributions. Cohabitation agreements can override these default rules.
Are common law partners responsible for each other's debts in New Brunswick?
No automatic debt responsibility exists for common law partners. Each partner remains responsible for debts in their individual name. Joint debts create joint liability. Credit obtained using a partner's income or assets without their knowledge does not create liability for that partner. Cohabitation does not merge financial obligations the way marriage does in some circumstances.
How do courts divide property in a common law separation in New Brunswick?
Courts do not "divide" common law property in the marital property sense. Instead, courts assess unjust enrichment claims by examining contributions, enrichment, and deprivation. Remedies include monetary awards reflecting contribution value or constructive trusts providing ownership interests in specific property. The analysis is contribution-based rather than presumptively equal, requiring extensive evidence of each partner's inputs.