Common-Law Partner Sponsorship
A common-law partner is a person who shares a conjugal relationship (marriage-like relationship without being married) with another person and that person can be either of the opposite sex or the same-sex. The common-law partnership must show evidence of cohabitation in a conjugal relationship. The common-law partnership is a de facto relationship whereas marriage is considered as a de jure relationship.
De Facto Relationship vs De jure Relationship
Many people may have ambiguity what is the de facto relationship and what is de jure relationship as those two words are commonly used in common-law sponsorship or spousal sponsorship applications.
De facto relationship: The term de facto means the true in nature whereas not established as per law. So, in text with the common-law relationship it is considered such relationships that are true and real but are not been established as per law or not established in law. As the common-law couple has to prove that they are in a common-law relationship with their partner and are living or had lived for a certain time together. The period of cohabitation in terms of immigration sponsorship application is considered at least one year before the couple file for the common-law sponsorship application.
De jure relationship: The term de jure means the relationship or affair as per law. So, in context to immigration sponsorship matters it refers to the relations which are true, accurate, and has been established as per law. The marriage will be considered a de jure relationship.
To sponsor your common-law partner for Canadian Permanent Residence; a common-law partner is:
- Not legally married
- Of opposite sex or same-sex
- At least 18 years of age
- Someone who can share a marriage like/conjugal relationship with
- Someone who has been living together for the past at least one year with periods apart only for business or family purposes
- Someone who has spent short and temporary time apart
Assessing a Common-Law Partnership
In Common-Law relation as a couple is not legally married so spousal sponsorship is out of the question but a common-law partnership can be proved by multiple factors; of which some of them are as follow:
- Declaration of common-law partnership
- Statements of shared bank accounts
- Statements of shared credit/debit cards
- Evidence of mutual ownership of property
- Evidence of shared rent
- Shared utility bills
- Evidence of same mailing address
- Proof of household purchases and management of household expenditures together
- Other documents that may show proof of cohabitation such as insurance policies, ids, and drivers licenses.
Certain misconception about the common-law relationship
There are several misconceptions about the common-law relationship which are as follows:
Period of cohabitation
The period of cohabitation in terms of a sponsorship application has always remained a confusing part among most of the common-law couples. Either they think they are qualified to sponsor their partners as soon as they start cohabiting together or they think it will require them years and years to claim a common-law relationship.
Those who think that they might be qualified to sponsor right away as soon as they start living together often rate a common-law relationship is equivalent to spousal relationship and as married persons are allowed to sponsor their spouses they can sponsor their partners as well right after they start cohabiting together. Whereas those, who think that a common-law relationship requires years to establish so they cannot sponsor their partners until they have proofs of cohabiting together for many years or at least 03 years.
Both are wrong, as in terms of immigration sponsorship at least 12 months of cohabitation is required. Those who are mixing it with marriages and those who are mixing it with family law interpretation of common-law (for at least 03 years to claim spousal support) are both wrong.
Having a child with a common-law partner will eliminate the 12 months cohabiting requirement.
Again it is a misconception, despite one has a child with a Canadian or PR partner they must have to cohabit together for at least 12 months before sponsoring their partner to Canada as without cohabiting for at least 12 months, they cannot be considered common-law partners.
If the couple cannot prove that they were cohabiting together as a couple where their relationship is having the same elements like as a married couple and share the same interdependency both in terms of financial and social values and cannot prove that they are also sharing other common things, they cannot apply as a common-law couple. Thus, having a baby will not supersede the cohabiting for at least 12 months requirement unless the couple gets married and apply under the spousal sponsorship route.
There is no financial obligation, as they are applying as a common-law partner and are not married.
Many common-law couples think if they sponsor their partners' sponsorship application under common-law sponsorship stream they will be exempted from a financial obligation as it is associated with spousal sponsorship or parents or grandparents' sponsorship as they are not married. It is a misconception regardless of the stream i.e. spousal sponsorship, common-law partner sponsorship, or conjugal partner sponsorship, the sponsor will be responsible for the well-being and maintenance of their sponsored partners for the period of 03 years and are still considered obligated by the law to fulfill the terms of the undertaking, they have signed with the government. Marriage has nothing to do with the undertaking requirements, as by signing the sponsorship forms the sponsor has signed the undertaking and will remain liable for the period of 03 years.
Living outside of Canada thus cannot sponsor a common-law partner
This is a technical thing as it may partially be true under certain circumstances but in general may not be true to its face value.
In terms of sponsoring a common-law partner from abroad whilst living abroad is possible for Canadian Citizens but still, they must have to prove that they have strong intentions to reside with their partners in Canada once their partner's application gets a positive decision and the whole process of sponsorship is not just to facilitate the partner's status in Canada. Visa officers here will not only have to judge the credibility of the relationship but also the intention of the couple to establish in Canada.
Similarly, it may be true for permanent residents of Canada as they cannot sponsor their common-law partners whilst live abroad, they must be physically in Canada in order to initiate the common-law sponsorship application for their partners.
Common-law sponsorships are mostly refused so we have to get married
Again, there is a misconception that if someone applies as a common-law partner it will have fewer chances of approval as compared to spousal sponsorship applications. There is no truth in this misconception as the essence of the application lies in the bonafide of the relationship rather than their marital status. A genuine common-law relationship has equal importance and value in terms of Canadian immigration law as a married relationship. Each application is normally decided as per its merits and yet alone not being married may not render you a negative decision on your sponsorship application.
Common-law sponsorship applications may get more time to process
The sponsorship applications in all three routes i.e. spousal, common-law partner, or conjugal partner streams take around 12 months to process. The amount of time to process the application varies as per the complexity of the application and the circumstances of the couple rather than a stream of an application under which it is applied. Although it is a general concept that married spouses have to put fewer efforts to show the genuineness of the relationship as compared to the common-law or conjugal partner applicants. It may be partially true as marriages may have certain advantages and obligations as well and being the de jure relationships easy to establish and prove but again genuineness of the relationship element will be the same as with other streams i.e. common-law or conjugal.
The visa officer has a tangible proof of relationship in spousal circumstances whereas the applicants have to establish their claim in common-law or conjugal relationships.
Sponsoring a Common-Law Partnership
If you are in a legitimate common-law partnership and wish to sponsor your partner to Canada the following situations may be considered for your sponsorship.
Cohabitation refers to two people living together in a household with a setup of mutual understanding. Common-law partners must be living together for at least 12 months according to the law. There can only be interim separation for legitimate purposes such as business trips or family visits, obligations, or study purposes.
Sponsoring a Common-Law Partner Abroad
After one year of continuous cohabitation, a common-law partner may live apart for temporary periods maintaining their common-law partnership. The couple may have been separated due to reasons such as:
- Educational purposes
- Employment reasons
- Death or illness of a family member
- Extreme country conditions such as war or political unrest.
If such reasons exist, the couple may still apply for sponsorship providing they have evidence to support their circumstances and proof of intention to continue the partnership. A longer period of separation may prove to be detrimental in supporting the application. Thus, just like a marriage relationship, the common-law partnership should determine the intentions of staying and getting back together as soon as possible.
Sponsoring a Common-law Partner with a prior common-law relationship
A common-law partner with a prior common-law relationship may only be sponsored upon the death of the prior partner or clear evidence of the conclusion of prior relationship. There must be ample evidence to convince the officer that there is no more cohabitation and the relationship has ended with the previous partner.
Sponsoring a Common-law Partner legally married to someone else
A common-law partner who has been previously married but is on the verge of a divorce may be sponsored providing enough evidence that he/she has cohabited with the current common-law partner for at least one year and shares a conjugal relationship. Cohabitation with the current common-law partner means physical separation from prior spouse and thus cannot be established if the partner remains in a conjugal relationship with the former spouse. Thus, it is imperative to satisfy the officer. Additional evidence may be required such as:
- A separation agreement.
- A signed declaration of the annulment of the marriage and that the person is now in a conjugal relationship.
- Documents showing that the legally married spouse will be withdrawn from mutual insurance policies and beneficiaries.
- A court order stating the future of the children regarding custody and alimony.
Sponsoring a Common-law Partner who is a previously separated spouse
A legally separated spouse who was a non-accompanying family member and was not disclosed because the sponsor was in a common-law or conjugal relationship with Canadian Partner can NOT be sponsored by the spouse in Canada. In such cases, the visa officer must have to satisfy that the common-law partnership is not dissolved purely for immigration purposes and the new relationship with the previously separate spouse is legit and the officer will determine the R4.1 does not apply.
As per the Immigration and Refugee Protection Regulations R 4(1)(a)(b):
- 4 (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
- (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
- (b) is not genuine.”
The sponsor will provide ample evidence proving the prior common-law relationship has ended and a new relationship with a previous spouse or common-law partner is legitimate. Additional evidence may be requested by the officer such as:
- Proof of ownership of property such as mortgage
- Proof of joint accounts such as financial statements
- Documents showing the same addresses such as licenses, insurance policies, etc.
- Documents ensuring marital relationships.
Divorce and remarriage do not overcome exclusion. A previously married spouse may be only excluded if they were married but not examines at the time that the sponsor applied for permanent residence.
Prohibited Common-law Partnerships
Prohibited common-law partnerships are as follow:
- Cannot be established with more than one person at a time
- Polygamous relationships
- Consanguine relationships
- Incestuous relationships
- Relationships in which one or both partners are below the consent age
- A relationship in which one of the partners is detained.
Process for applying Common-Law Sponsorship Application
The sponsor remains in Canada while the person being sponsored waits in their home country. The inland common-law sponsorship will allow the person to be sponsored to reside in Canada providing that he/she attains a temporary visit visa (except for nationals of visa-exempt countries) In case the visa is denied the applicant may have to apply for sponsorship under the outside-Canada process.
Let us help you in sponsoring your common-law partner today. We have a professional team having years of experience handling such complex cases and can help you to file your application.