Common-law partners are not subject to the rules of a matrimonial regime and the family patrimony, nor can they rely on the provisions of the Civil Code regarding legal successions. Their only recourse, if its existence can be proven, is the establishment of a partnership.
After living together, can partners in love be considered business partners by claiming that certain common economic activities have led to the establishment of a partnership under the Civil Code of Quebec?
Thus, a couple, unmarried but living together, agreed that Madame would purchase a residence on her own since Monsieur's financial situation was very precarious at the time. Both financially contribute to the expenses and mortgage payments of the residence. After five years, Madame transfers the undivided half of the residence to Monsieur. Madame's situation becomes precarious in turn, and she transfers the other undivided half of the residence to Monsieur. He passes away and bequeaths all his assets to his two daughters. The heirs sell the residence. Madame disagrees and argues that a partnership was formed during their cohabitation and brings the matter to the Court to claim the entirety of the proceeds from the sale of the residence.
The court*, relying on a decision of the Supreme Court of Canada, sets out the three necessary conditions to establish the existence of a partnership when there has been cohabitation:
i) each partner must contribute to the common fund and cannot simply provide furniture or assume the expenses of the residence;
ii) each partner must share the losses and profits; and,
iii) the behavior of each partner must demonstrate active and conscious collaboration, an affectio societatis, on an equal footing with the intention of sharing the profits.
The judge mentions that the provisions of Monsieur's will, drafted after the purchase of the residence and cancelling a previous will benefiting Madame, have the effect of preventing her from benefiting from any income arising from the property, which goes against the spirit of the formation of a partnership and thus invalidates Madame's claims. The court concludes that Madame has not "proven the existence of a partnership in a probative manner." Common-law partners are not subject to the rules of a matrimonial regime and family patrimony, nor can they rely on the provisions of the Civil Code regarding legal successions. They only have the option of a partnership, when its existence can be proven.
What is presumable is not necessarily provable, but what is provable does not have to be presumed. Why not make what is only presumable provable with clear written evidence?
* C.S. Terrebonne 700-17-001345-031, 2005-08-26
