What is common law marriage?
Common law marriage refers to a cohabiting relationship in which a couple has chosen to live together as a couple and consider themselves to be married even though they never entered into a formal legally recognized marriage. This differs from a traditional marriage, which is a legally recognized union between two people and is subject to provincial, territorial and federal laws.
The legality of common law marriages and their attendant rights and obligations vary widely from jurisdiction to jurisdiction. In Canada, the phrase "common law spouse," as it is used within the context of family law , is usually not used to describe a common law marriage. Canada presently recognizes common law relationships to the extent that these are equivalent to marriage in some respects, such as eligibility to receive support and share property in a divorce settlement, parental rights, the imposition of court-ordered benefits such as spousal support and proceeds of death benefits, and matters relating to the Children’s Law Reform Act.
Although the term marriage of right may not be used, common law partners in Ontario may benefit from their long period of time spent together. In many cases, they may be entitled to certain benefits reserved for married couples, such as spousal support and equal division of property.
Requirements in Ontario
Generally, a couple may be considered common law spouses provided they have cohabitated for three or more years with the presence of a sexual and intimate relationship, or have cohabitated for less than three years in a relationship of permanence, similar to a marriage. The Court has held that common law spousal relationships are relationships marked by their distinct qualities that set them apart from mere friendship or involvement and those qualities include a sexual and intimate relationship. Unlike married spouses, common law spouses do not share the same obligations and duties to one another and are subject to the law of unjust enrichment regarding exclusive possession of the family home. Therefore, the family home legislation does not apply to common law spouses unless they have acquired their respective interests in the family home as a result of a common intention to share as owners. The Family Law Act sets out a few different definitions of a spouse. Section 4 of the Act defines a spouse as: "Either of two persons who are not married to each other and who are not related by blood, marriage or adoption, and who cohabit in a conjugal relationship, having regard to the factors set out in the Definition of "spouse" in Section 29." Essentially, a spouse is someone who is not related by blood, marriage or adoption, and who cohabits in a conjugal or intimate relationship. The court will evaluate whether spouses are in a conjugal relationship based on the duration of the relationship, the frequency and form of contact, whether the spouses live under the same roof and share a bed, engage in a sexual relationship, whether they perform household chores, present themselves to others as spouses, go on vacation together, attend family functions together, and whether they cooperate in parenting and decision-making in regards to raising their children.
The Spousal Support Advisory Guidelines (the "Guidelines") assist in determining spousal support and determining whether a person is a spouse. The Guidelines place emphasis on duration of the relationship and the nature of a spouse’s dependency. In M v. H, the Supreme Court of Canada defined a common law relationship as a relationship between parties that is of a lasting nature which resembles marriage. The Supreme Court applies an analysis that distinguishes between a marriage-like relationship and a non-marriage-like relationship.
Rights and responsibilities of common law spouses
Common law partners in Ontario generally have the same rights and obligations as married spouses when it comes to issues that may arise between them during cohabitation or upon separation.
While not all common law cohabitation is a legally recognized situation, once you meet the eligibility criteria for common law status, you are entitled to similar rights and obligations (in some cases) as married spouses.
This is also the case for same-sex couples. Although same-sex marriage was not recognized in Ontario until June 10, 2003, same-sex couples are entitled to the same rights, liability, and obligations as opposite-sex couples.
However, if you and your partner are common law partners, you technically do not have the same legal rights and obligations as married spouses. For example, married spouses have entitlements to spousal support under the Divorce Act, whereas common law partners may have entitlement to spousal support under the Family Law Act.
In Ontario, property rights of married spouses and common law partners are different. Married spouses have equal rights to property accumulated during the marriage, while common law partners do not have equal rights and entitlements.
Common law partners may be able to make a claim for relief, based on trust for the property owned by the other partner. The Family Law Act allows a common law partner to claim a share of assets from the other common law partner, if they can demonstrate that:
If you and your partner have a cohabitation agreement, the court considers the agreement to be a record of your intentions. Courts will decide on the agreement’s enforceability, if it is violated.
Married spouses are entitled to share the value of the family property during the marriage, after separation or divorce. Spousal rights are governed by provincial family law statutes.
As mentioned above, married spouses have rights to property accumulated during the marriage, including:
Common law partners in a separation have no entitlement to the equalization of family property.
When inherited property or property given as a gift to one spouse by a third party is held in a joint name, the property remains the property of the spouse who received it.
Marriage creates certain legal rights for spouses. Ontario recognizes common law partners as spouses, allowing them to have similar rights to married spouses in law.
Therefore, common law relationships can be formalized upon cohabitation of spouses or upon applying to the court to get a declaration of "spouse", entitling the applicants to spousal rights.
Separation and support
When a common law relationship ends in separation, the parties must resolve issues of child support and equalization of assets as well as custody and access. Where a child is involved, the primary concern in determining child support is what plan, if any, the parties have put into effect with respect to the care of the child and the division of parenting time. Most separation agreements contain provisions for the equalization of property and the payment of child support. The guidelines for child support should be the starting point for discussions.
Common law spouses are not entitled to spousal support under the Federal Divorce Act. Their rights with respect to spousal support are derived from the provincial Family Law Act. Section 1(1) of the Family Law Act defines a spouse in the context of support entitlement as a person who (a) is married to a person, and (b) if the persons are not married, has cohabited, (i) continuously for a period of not less than three years, (ii) of some permanence, if they are the parents of a child, or (iii) in a relationship of some permanence, considering all the circumstances including any financial dependency or interdependency between them.
The date that the parties separate is the date on which the claim for equalization and a claim for spousal support is calculated. The income of the parties for the previous three years is used.
Under the Ontario Family Law Act, the court will make an equalization order with respect to marital homes, pensions, business and other assets acquired during the marriage. Its mandate is to give equal share to the assets developed during the marriage. The valuation date is the date of separation. The legislature has seen fit to validate marriage-like relationships and consider them legally equivalent to marriage for the purpose of division of assets.
Child custody and support
Common law spouses are familiar with the issue of child support because many of them have children together. However, they may not be as aware that child support issues are relevant in common law relationships just as much as they are in married couples. Child support obligations are similar regardless if we are talking about separation of married spouses or cohabitation or separation of common law spouses.
When a parent is paying child support pursuant to a Final Order or a domestic contract such as a Separation Agreement or Minutes of Settlement, the amount of child support will be the same, regardless if the parties were married or not. Child support is assessed in accordance with the Federal Child Support Guidelines.
As with married spouses, if a common law relationship breaks down and the parents have become estranged, whether it be by a living apart agreement, a separation agreement or simply by their own actions – a child of the relationship has rights in respect of both parents. Under the Family Law Act, someone who is not a birth parent (an "extended parent") can have rights over children of the relationship . The parents of a child have support and custody obligations during the litigation, and afterwards a child support obligation. If you are a non-birth parent but have acted as a parent to children of the relationship, you likely have ongoing obligations and rights with regard to those children.
Frequently, situations arise where one of the common law partners has the children during the course of the relationship, and then when the relationship ends the other common law partner accuses the acting parent of having been a babysitter or nanny, and challenges the other partner’s ability to have a relationship with the child. When situations like this occur, it is very important that the other parent obtain legal advice and make an application for an order for contact to ensure his or her rights and interests are protected.
Payments for child support are fixed, whereas the obligations for custody vary significantly. The parties to the child must identify the primary residence of the child and you should retain a family lawyer to draft the following documents: (a) Minutes of Settlement pursuant to rules 18 and 19 of the Family Law Rules; or (b) Separation Agreement (domestic contract).
Benefits of common law vs. married
In Ontario, the benefits you receive from marrying your partner will depend on your current legal standing. In short, if you are legally married, you will likely gain financial security and rights to possessions and property that a common-law partner will not. However, it is important to understand how the law affects different aspects of a relationship so that you can make an informed decision on whether to marry or remain in a common law relationship.
When two individuals formally marry in Ontario, they enter into a new contract that will usually provide them with all sorts of financial and legal benefits. You may be eligible for a spousal support payment if you earn significantly less, and you may be able to take advantage of your spouse’s insurance benefits, employee pension, and other financial assets. Furthermore, if you die while legally married, your partner will automatically inherit your assets, even if you have left a will naming someone else as a beneficiary. When a common law couple separates, the law restricts the options available for legal action. For example, the only way for a common law spouse to receive a form of spousal support is through filing a claim for unjust enrichment at the courts. However, there is no guarantee of support, even if the partner who provided the care receives no other financial or social support. For child support, the partner caring for the children often has access to benefits, but will have to pursue those rights through a court order. While both marriage and common law unions require some degree of contribution from both spouses, married couples have a duty to financially support each other equally, regardless of their individual incomes. When a common law couple separates, the partner earning the higher income only has to provide support for the spouse who is unable to support themselves financially. This means that a former spouse can often walk away from a common law union paying less monthly support than a legally married spouse in the same situation would have to contribute. When the custodial parent of a child under the age of 18 is married to the other parent and they choose to divorce, all child support payments will cease. The non-custodial parent is totally responsible for the payment of the child’s reasonable expenses. In a common law separation, the non-custodial parent has the option of allowing the custodial parent to claim certain tax credits, such as the donated amount to charities or education costs. If the two are separated and still agreeing to share certain tax credits, then the non-custodial parent will only be responsible for his/her share of the amount. Ultimately, the majority of people will marry for emotional and religious reasons, but there are some financial and legal benefits that come along with a legally binding marriage that many people in Ontario do not understand clearly.
Legal protection for common law couples
The law does not confer rights to common law partners in either the property or the family law context. You may have a right to claim damages or make a claim to support, but only if there is injury to a spouse, child or dependent. Therefore, the courts have made it clear that only by contract can equalization of property rights exist between common law partners. This is likely not an obvious concept for many (+)12)
It should be a mainstay agreement for common law couples to have a cohabitation agreement. A cohabitation agreement deals with how property will be dealt with upon termination of the relationship and specifically addresses the situation where the parties are not legally married. In the absence of such an agreement it would be very difficult for any property claim to proceed.
Virtually all common law relationships lack cohabitation agreements. Parties tend to be lax in planning for the future and the need for lawyers. A very common cohabitation agreement specifically deals with equalization of property and specifically addresses equalization of property on termination of the relationship and does no more than, say, provide that property acquired during the relationship is joint or equally shared and that property acquired prior to the relationship is separate. It is not uncommon for common law partners to have acquired property prior to the relationship that they have identified as property they intended to keep separately in the event of marriage. It is well to discuss this during planning stages. The best protection is to deal with the property as a married couple would. If parties have acquired their own property subsequent to commencing the relationship, then the question becomes as to whether that property was intended as a gift to the other party or was meant to be kept separate.
Wills are an important part of planning for common law partners. As has been frequently noted, if married partners die without making a will, they are deemed to have made a will in their spouses’ favour. If common law partners die without a will, this is not the case. They die intestate and no rights accrue to the fact that they are living together in a common law arrangement. The principle is that no one, who is not a blood relative or a legally recognized relative, has a right to inherit from another. Blood relatives can include mother and father and child, but may also include uncles and aunts. A common law partner therefore has no greater right to inherit than a complete stranger.
The risk is that the deceased did expressly revoke the will, that the will is in another jurisdiction and is therefore deemed valid, or that a claim can be made that the will was unduly influenced. All are difficult claims to bring and all require discovery and evidence to support the claim.
It is much better that common law partners make wills that purposely disinherit a spouse. At least the intention is then made clear in the event of death. Generally, speaking, the best form of protection for common law partners is to enter into that most important of agreements, that is, a cohabitation agreement.
Recent changes in the law
As of October 2017, the government of Ontario has amended the Law Reform Act and the Vital Statistics Act to permit parties to a common law marriage who wish to change their name to do so by registering under the Marriage Act. This is detailed in section 65.1 of the Law Reform Act and Section 36.1 of the Vital Statistics Act . Prior to October 2017, a party to a common law marriage would be required to submit an application to the Registrar General in the form of a statutory declaration or affidavit that the person has been married to a named spouse for a minimum period (a period of at least five continuous years), does not have a spouse (living or dead), and has notified his or her spouse of this application. Now, the common law spouse should submit a request to procure a certificate of marriage under the Marriage Act to the Clerk of the municipality in which the applicant resides, however, the ministry is aware of delays in the turnaround time for processing these requests.