Common Law PEI

If you live with a partner in Prince Edward Island and consider yourselves “common law,” the law does not treat you exactly the same as a married couple. In some areas you are treated essentially the same as if you were married, particularly for support and inheritance. In other areas, especially property and the home you live in, the differences are significant.

This article walks through the main issues: when you are considered a “spouse,” what happens to property on separation, what the rules are for support, children, estates, and how a cohabitation agreement can give you more certainty.

When are you considered a “spouse” in PEI if you are not married?

In Prince Edward Island, the key statute that deals with family relationships is the Family Law Act. For property division and the matrimonial home, the Act uses a narrow definition of “spouse” that only covers people who are legally married to each other.

However, for support and several other purposes, the Act expands the definition of spouse to include certain common law partners. For support, you are considered spouses if: you are married to each other, or you have lived together in a conjugal relationship for at least three years, or you are living in a conjugal relationship and are the natural or adoptive parents of a child.

In short, for spousal support and some estate-related rights, common law partners who meet that 3-year / child test are “spouses.” For matrimonial property and matrimonial home rights, only married couples are “spouses.”

Property rights for common law spouses in PEI

In Prince Edward Island, the property division rules in the Family Law Act apply to married spouses only. They are designed to divide “family assets” between married spouses when the marriage ends, usually with a presumption of equal sharing. Common law spouses are expressly excluded from those property division provisions.

That means there is no automatic right to an equal share of the property gathered during the relationship; there is no statutory equalization of net family property for common law couples in PEI; and as a default rule, each partner keeps what is in their own name.

If an asset is in one partner’s name only, the starting point is that it belongs entirely to that person, even if the other partner contributed money or labour. If both names are on title or on the account, then you own the asset jointly. In a separation, joint assets are divided based on the legal form of ownership and any agreements you have.

Unjust enrichment and constructive trust claims

A common law partner is not completely without remedies. If one person has built up significant wealth in their name, partly because of the other partner’s unpaid labour, childcare, or direct financial contributions, the non-owner may be able to bring a claim in unjust enrichment or constructive trust under the general law of equity.

In broad terms, the court looks at three questions: (i) enrichment – has one partner clearly been enriched, for example by receiving unpaid work, money, or benefits from the other? (ii) corresponding deprivation – has the other partner suffered a corresponding loss or given something up? and (iii) no juristic reason – is there no legal reason that justifies the enrichment, such as a contract, a gift, or a statutory scheme?

If those elements are proven, the court can award either a sum of money or a share in a specific asset as a form of constructive trust.

Those claims can be powerful, but they are also fact-intensive – you need evidence of who did what, who paid for what, and what both of you expected; uncertain – outcomes vary a lot between cases since there is no fixed formula; and expensive – they often require detailed financial and factual evidence and sometimes expert assistance.

The matrimonial home and common law partners

Prince Edward Island’s Family Law Act gives married spouses special and very strong rights in relation to the matrimonial home. None of that applies to common law couples. If you are common law and not on title, you have no automatic statutory right to stay in the home when you separate. You also have no special protection preventing your partner from selling or mortgaging the home.

Spousal support for common law spouses in PEI

On the support side, Prince Edward Island law is much more generous to common law spouses. Under Part III of the Family Law Act, “spouse” for support includes not just married couples but also people who have lived together in a conjugal relationship for at least three years, or lived together in a conjugal relationship and have a child together.

So, for support purposes, common law couples who meet the Family Law Act definition are essentially on equal footing with married spouses.

Child support and parenting: marital status does not matter

When it comes to children, PEI law follows the national pattern. Your legal status as married or common law is not the key issue. Parenting arrangements in PEI are governed primarily by the Children’s Law Act for unmarried parents, and the Divorce Act for married parents, but both use the best interests of the child as the core test.

Likewise, child support is based on the Federal Child Support Guidelines and on income, not on whether the parents ever married.

For common law parents, if you have children together in PEI, your responsibilities and rights concerning those children are the same as if you had married.

Estates: what happens if a common law partner dies?

In PEI, the law treats certain common law partners as “spouses” for inheritance purposes when someone dies without a will. The Probate Act uses a definition of spouse that incorporates the broader Family Law Act definition.

As a result, a qualifying common law partner in PEI is entitled to the same share of the estate on an intestacy as a married spouse would receive.

Dependants’ relief

PEI also has a Dependants of a Deceased Person Relief Act that allows certain “dependants” to claim support from an estate if they are not adequately provided for. This can provide an additional safety net if a will exists but leaves a common law partner inadequately provided for, or if there is a dispute over what the intestacy scheme provides.

Cohabitation agreements in PEI

Prince Edward Island’s Family Law Act expressly allows for cohabitation agreements between common law partners. Under Part IV of the Act, a cohabitation agreement is an agreement between two people who are cohabiting or intend to cohabit and who are not married to each other.

A cohabitation agreement can deal with ownership or division of property; spousal support obligations; certain aspects of children’s education and moral training; how expenses are shared; and what happens on separation or death.

Because common law partners in PEI do not have the statutory property protections that married spouses enjoy, a cohabitation agreement can be especially important. It lets you build your own mini-code for what happens if things go wrong.

The bottom line is that choosing to live common law in Prince Edward Island is not just a personal or cultural decision. It has real legal and financial consequences, especially if the relationship ends or one partner dies. Understanding those consequences, and using tools like cohabitation agreements and wills, lets you shape a legal framework that fits your life rather than leaving everything to default rules that may not match your expectations.