Marriage and Common Law Relationships 101
By LawyerLinx,
August 13, 2014

Whether you are a common law partner or a spouse has very different legal consequences in Canada. The differential treatment under the law applies to property rights and spousal support entitlement. Marital status also has a determinative effect on estate rights.

The policy driving the distinction with which common-law unions and marriages are treated stems from giving couples in long-term relationships the ability to opt-out of the automatic equal, economic partnership effective on marriage.

A “spouse” is a person to whom you are legally married. To be married, a couple must go through a marriage ceremony led by someone who has the legal power to marry people, such as a judge, justice of the peace, or religious official.

On the other hand, a common-law partner is a person who is not your spouse, but with whom you are cohabitating in a conjugal relationship for a certain period of time. The amount of time varies from province to province and depending on the statue applicable to the issue at hand, which define common law differently, one could be considered common law for one purpose and not for another.. Whether the couple has had or adopted children together is also a factor.

It is important to remember that living together for many years or referring to each other as "husband", "wife", or "spouse" does not make a couple legally married to each other.

Property Rights

Common law couples do not have the same rights as married couples to share in the property they accumulated when they were living together. Typically property and belongings belong to the person who bought them.

Unlike married couples who equalize the property upon the marriage breakdown, common law couples also do not have the right to divide between them the increase in value of the property accumulated throughout the relationship. Furthermore, the common law partner who is not on title to the home or condominium in which the couple resided, generally has no legal entitlement to that property. In the event the non-title owning common law spouse contributed to property owned by the other partner, property rights may be pursued based on the doctrine of constructive trust or unjust enrichment.

Spousal Support

Spousal support is an automatic consideration for legally married couples. For common law couples, spousal support entitlement varies among the provinces. For example in Ontario spousal support entitlement arises for common law couples after 3 years of cohabitation or if the couples was in a relationship of permanence and has a child together.

Estate Planning

Common law partners are also treated quite differently when it comes to inheritance. If one common law partner dies without a will, there are no automatic inheritance rights to the surviving partner. Without a legal will, the surviving partner will not even be able to choose the person who will arrange the funeral or ensure that all your debts are paid.

The legislation only allows a common law spouse to sue the estate and seek support as a dependent.

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This article should not be relied upon as legal advice - the comments may not be applicable to you and may not be up to date. If you have any questions, you should contact a lawyer.