Quando se fala de imigração na Classe Família (sponsorship), há muitas dúvidas sobre a definição de relacionamentos, especialmente os “conjugal partners”. Afinal, “spouse” é pra quem é casado, no papel, e “common-law” é pra quem mora junto há mais de 1 ano. E o que vem a ser “conjugal partner”?
O site do Citizenship & Immigration Canada é bem direto no que se refere a isto:
Characteristics of conjugal relationships
The word “conjugal” is not defined in legislation; however, the factors that are used to determine whether a couple is in a conjugal relationship are described in court decisions.
Marriage is a status-based relationship existing from the day the marriage is legally valid until it is severed by death or divorce. A common-law relationship (and in the immigration context, a conjugal partner relationship) is a fact-based relationship which exists from the day on which the two individuals can reasonably demonstrate that the relationship meets the definition set out in the Regulations.
While this is a significant difference, there are many similarities in the two types of relationships. This is because of the history of the recognition in law of common-law relationships and their definition, which includes the word “conjugal.”
The term “conjugal” was originally used to describe marriage. Then, over the years, it was expanded by various court decisions to describe “marriage-like” relationships, i.e., a man and a woman in a common-law relationship. With the M. v. H. decision in 1999, the Supreme Court of Canada further expanded the term to include same-sex common-law couples.
The word “conjugal” does not mean “sexual relations” alone. It signifies that there is a significant degree of attachment between two partners. The word “conjugal” comes from two Latin words, one meaning “join” and the other meaning “yoke,” thus, literally, the term means “joined together” or “yoked together.”
The Supreme Court adopts the list of factors that must be considered in determining whether any two individuals are actually in a conjugal relationship. They include:
• shared shelter (e.g., sleeping arrangements).
• sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other).
• services (e.g., conduct and habit with respect to the sharing of household chores).
• social activities (e.g., their attitude and conduct as a couple in the community and with their families).
• economic support (e.g., financial arrangements, ownership of property).
• children (e.g., attitude and conduct concerning children).
• the societal perception of the two as a couple.
From the language used by the Supreme Court it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent – financially, socially, emotionally, and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another.
Based on this, the following characteristics should be present to some degree in all conjugal
relationships, married and unmarried:
• mutual commitment to a shared life.
• exclusive – cannot be in more than one conjugal relationship at a time;• intimate – commitment to sexual exclusivity.
• interdependent – physically, emotionally, financially, socially.
• permanent – long-term, genuine and continuing relationship.
• present themselves as a couple.
• regarded by others as a couple.
• caring for children (if there are children).
People who are dating or who are thinking about marrying or living together and establishing a common-law relationship are NOT yet in a conjugal relationship, nor are people who want to live together to “try out” their relationship.
Persons in a conjugal relationship have made a significant commitment to one another.
A married couple makes the commitment publicly at a specific point in time via their marriage vows and ceremony, and the marriage certificate and registration is a record of that commitment. In a common-law or conjugal partner relationship, there is not necessarily a single point in time at which a commitment is made, and there is no one legal document attesting to the commitment.
Instead, there is the passage of time together, the building of intimacy and emotional ties and the accumulation of other types of evidence, such as naming one another as beneficiaries of insurance policies or estates, joint ownership of possessions, joint decision-making with consequences for one partner affecting the other, and financial support of one another (joint expenses or sharing of income, etc.
When taken together, these facts indicate that the couple has come to a similar point as that of a married couple – there is significant commitment and mutual interdependence in a monogamous relationship of some permanence.
Because of Supreme Court decisions, the choice not to marry is a constitutionally protected choice. Thus, CIC cannot require couples to marry in order to immigrate. However, if they are not married, they must be common-law partners. There is NO provision for fiancé(e)s or “intended
common-law partners” in IRPA. If a Canadian and a foreign national can get married or can live together and establish a common-law relationship, this is what they are expected to have done before they submit sponsorship and immigration applications.
Common-law partners, however, have to meet the definition, including living together continuously for one
year to have their relationship legally recognized. In the immigration context, there are some exceptional circumstances where a Canadian is in a conjugal relationship with a foreign national partner and would ordinarily sponsor that person as a common-law partner, but the two have not been able to live together continuously for one year, usually because immigration rules prevent them from long stays in one another’s countries. As well, for these individuals, marriage is usually not an available option.
The conjugal partner category applies only to the family class and only to a foreign national sponsored by a Canadian citizen or permanent resident living in Canada. This category does not apply to the spouse or common-law partner in Canada class as the exception would not be required in Canada.
Visa Officers should also inquire whether the couple is planning to marry. If they are planning to marry, then they are fiancés and may not have established a conjugal relationship. Officers should explain that there is no fiancé(e) category in Canada’s immigration legislation, and that the foreign national fiancé(e) must be married to their Canadian sponsor and apply to immigrate as a married spouse.