Common law vs Conjugal. Plus do we have to get married?

[wanderself]

My partner is Canadian and I am from Spain. We met while she was doing her MFA in London, where I was living at the time. We moved in together (I did not put her on the lease of my apartment, at that point we did not know we would be moving to Canada two years later). After two years we applied for the conjugal visa. We were unsure of whether to apply for common law as we had been together for two years and living together for a lot of that time, but not consecutively - my partner had to go back to Canada during her summer vacations during her MFA and work as she needed the money and I could not follow as without a visa I could not work there.

Once her MFA finished I moved back to Spain and we have been visiting each other and living together wherever one of us is working - but she is not allowed to work in Spain and I am not allowed to work in Canada, hence going for the visa so we can finally live and work in the same country.

We went for the conjugal visa as that summer we had to be apart. We explained this in detail but now the IRCC is asking for more information on why we are not getting married and why we cannot live together.

So:

1. Should we go for common law instead even if we did not live 12 months together out of 26 consecutively? Not clear whether conjugal is for other kind of situations (different religions, sexual preferences not allowed in one of the applicant's/sponsor's country that would put them in danger).

2. We do not want to marry again because both of us are divorced and we are thankful Canada allows for two types of visa - Conjugal and Common-law that make getting married optional. Nothin illegal not wanting to marry again. And we have been together for years now. Apparently we did not explain this correctly if they are asking again?

We sent many pages showing this relationship is very real - photographs in 20 countries, holidays, join bank accounts, emails, texts, selfies everywhere...no doubt about that. And we have been together for 2 years and 2 months. So do we change it to common law or stay with conjugal?

Many thanks for your help.

 

[Maina4576]

If you did not stay for at least 12 consecutive months, common law will be denied for sure. Conjugal is not that easy to get. My advice is stay together for 12 consecutive months and apply for pr card and opw at the same time.. thats my idea, my situation is kind of similar to you guys..

 

[Maina4576]

http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=346&top=14........check this out

 

[wanderself]

Thanks! this is very tricky because how can two people who dont have the right of residence to each other countries actually live together for 12 months? If i could have lived in Canada for 12 consecutive months, why would I need a visa? I thought conjugal applied to people who could not live together due to visa issues too.

We lived together Jan-May, then June to September my partner had school holidays and she went back to Canada to work but she came visit, then she moved with me again September to May and since we have been together either me going to Canada for a month or her coming to Spain for a month, continously. Do you think we qualify for common-law despite that summer of 2015 when she had to go back and work in Canada? The official document says: "One of you may have left the home for work or business travel, family obligations, and so on. That separation must have been temporary and short."

 

[Maina4576]

Conjugal Partner Relationship
A conjugal partner relationship is a relationship that does not fit the requirements of a common-law relationship because of circumstances beyond the control of you and your partner. In other words, this kind of relationship is more than just a physical/sexual relationship but, for some reason, you and your partner have been unable to live together for at least one year in a marriage-like relationship, or have been unable to legally marry. One reason might be because you are living in separate countries and there is an immigration barrier. You will not be considered to be in a conjugal partner relationship if you and your partner could have lived together in a common-law relationship but chose not to do so.

 

[wanderself]

Thanks again. This bit is what confused us: "One reason might be because you are living in separate countries and there is an immigration barrier".

That is exactly why we did not live together. She cannot live in Spain. I cannot live in Canada. So we can go with conjugal then? Everybody says it is notoriously hard to get and only for, i.e. same-sex couples in homophobic countries.

Afraid if we apply for conjugal it will be rejected despite the immigration barrier they actually specify and if we apply as common-law they will say that summer where she was working in Canada (3 months out of 2 years living together) voids it.

 

[MilesAway]

There is no immigration barrier in your case. You can go to Canada as a visitor and extend your stay to become common-law.

 

[Bcboundboy]

You have no prospect of qualifying as a conjugal couple; there are no barriers to you qualifying through other streams, and those barriers must exist in order for conjugal to be an option.

You can certainly live together in Canada as a visitor (arrive for a 6 month visit, later extend online) to establish common law. Whilst you would not be able to work in that time, that's a consequence of choosing the common law stream. I am not certain if you could do this in Spain (I know Canadians only get 90 days continuously in Schengen zone).

Alternatively, the only barrier to you getting married is that you've said you don't want to. Legally, and practically, you can. So since you won't qualify for conjugal (you can do both CL and marriage), if you don't want to live together unworking to establish CL, your only option is to get married.

 

[zardoz]

I agree. A conjugal partner application under these circumstances is almost certainly going to be rejected. Multiple options exist to be capable of becoming common-law or married. The personal choice to not marry is of no interest to IRCC. If you are not prepared to marry, common-law exists as a viable alternative. You just need to plan appropriately.

Expect to be refused as conjugal.

 

[wanderself]

Thanks, everyone. It is clear we will not be able to apply as conjugal then. Problem is common law means I will have to move to Canada for a year and not be able to work and that is challenging for many reasons - one salary (we are freelancers, so sometimes none), my career dying. And I can only be in Canada for 6 months at a time - how can I be there for 12? And my partner cannot come live in Spain for 12 months either, she is not allowed to. So how do people who are not allowed to live for 12 months in each other's countries get to live for 12 consecutive months together??? It is puzzling. I thought that was what conjugal was about. How is our case not one where immigration is a barrier? We cannot live together because of an immigration barrier, clearly. Thanks again.

 

[MilesAway]

Thanks, everyone. It is clear we will not be able to apply as conjugal then. Problem is common law means I will have to move to Canada for a year and not be able to work and that is challenging for many reasons - one salary (we are freelancers, so sometimes none), my career dying. And I can only be in Canada for 6 months at a time - how can I be there for 12? And my partner cannot come live in Spain for 12 months either, she is not allowed to. So how do people who are not allowed to live for 12 months in each other's countries get to live for 12 consecutive months together??? It is puzzling. I thought that was what conjugal was about. How is our case not one where immigration is a barrier? We cannot live together because of an immigration barrier, clearly. Thanks again.

You can apply to extend your stay. There are many people on here who have been in Canada for a few years on visitor extensions.

An immigration barrier would be where you could not enter Canada or could not obtain a visitor visa to Canada, which is clearly not the case.

 

[wanderself]

Thanks, Mileaway, everyone. "Immigration barrier" now understood. So no conjugal at all then. And no common-law since we have lived together for 15 out of 26 months but no consecutively (as my partner needed to go back to Canada during her MFA summer holidays and work).

So the only chance it seems is me moving to Canada on a tourist visa, then extend this to make it 12 months. Is that right?

I guess I could still go to Spain for a few weeks at a time to visit my family, correct? Some people in my family are very old and will likely pass away during that time, alas.

Thanks again.

 

[mikeymyke]

On a side note, freelancing work where you are not serving Canadian clients, is permitted in Canada as a visitor and doesnt require a work permit

 

[neftis]

I understand not wanting to get married, I really do. But in this case it makes things much easier... Is it really not an option for you guys?

 

[Rob_TO]

Thanks, Mileaway, everyone. "Immigration barrier" now understood. So no conjugal at all then. And no common-law since we have lived together for 15 out of 26 months but no consecutively (as my partner needed to go back to Canada during her MFA summer holidays and work).

So the only chance it seems is me moving to Canada on a tourist visa, then extend this to make it 12 months. Is that right?

I guess I could still go to Spain for a few weeks at a time to visit my family, correct? Some people in my family are very old and will likely pass away during that time, alas.

Thanks again.

You can do common-law by spending 6 months in Canada together, and then 6 months in Spain together to equal the 12 months for common-law status.

If this isn't possible, then marriage is your only feasible option after your current conjugal app is rejected.
Or if you got married immediately in a simple and quick courtroom ceremony, you could even ask the visa officer of your current app to change it to a married one and continue processing. They may or may not do this (it's up to discretion of visa officer), but if they did it would make the process much quicker.