Common-Law Marriage: Part I – It’s the same as being legally married, right?

Common-Law Marriage: Part I – It’s the same as being legally married, right?

July 16, 2020

By Margaret Waddington

These days more and more couples are deciding against getting married for the seemingly simpler option of common-law marriage. Although “common-law” has several legal definitions, in the family law context it means that you have lived together for at least 3 years or for 1 year, if you have a child together.

But what sounds like a great way to save money by skipping an expensive wedding can often become costly in the long run if you do not plan accordingly. Here are a few things you should consider in planning for your future if you decide to forgo tying the knot.

Children:

There is no distinction between married spouses or common-law spouses with respect to children.  Upon separation, issues such as custody, access and child support are addressed the same way between married and common-law spouses.

In fact, under the Family Law Act, a legal or common-law spouse may even be obligated to pay child support for their non-biological child if they have acted in the role of a parent for a significant length of time.

Spousal Support:

In Ontario, upon separation, your former spouse may seek spousal support from you whether you were married or not.  Whether you are entitled to spousal support and the amount of the payment will depend on a number of factors related to your relationship. These include the difference in your incomes, assets, age and ability to work.  Other factors include the standard of living when you were in the relationship, how you contributed to your spouses’ career and any hardship suffered from the breakdown.  For example, you are more likely to receive (or have to pay) spousal support if one partner gave up their own career to stay at home with the kids, or makes significantly less than the other spouse.

Matrimonial Home:

When a married couple divorces, they are equally entitled to the equity and occupation of their home regardless of whose name is on title or who legally owns the house.  Under the Family Law Act, common-law spouses are NOT entitled to any property that is not in their name.

There are some equitable claims that a spouse can make to get some value out of a property that they helped to maintain, renovated, paid for or if they helped to increase the value of a home. If you are in this situation you should consult with a lawyer as soon as possible to have them assist you in evaluating the strength of your claim and framing it properly for the courts.

Other Property:

Although married spouses are also entitled to a division of assets, legally called an equalization of net family property, common-law spouses are only entitled to the property that is held in their name.  For property held jointly between common-law spouses, one spouse may purchase the other spouse’s interest in an asset or it can be sold and the proceeds divided. This is also true of debts. Debts in one parties name are their obligation and joint debts should be divided.

These differences in legal property rights can have a huge impact on unsuspecting couples, and will be discussed further in Part II of this article

Estate Planning:

Finally, common-law spouses do not have the same rights as legally married spouses when their partner dies. Even common-law spouses that are still together at the time of death are NOT entitled to act as the Executor or Estate Trustee for their partner, nor do they have any inheritance rights unless it is included in a Will. If a common-law partner dies intestate (without a Will), their entire estate goes to their biological family and not to their common-law spouse.

It is important for every person to have a Will to ensure that their Estate will be administered smoothly and according to their final wishes. However, Wills and estate planning are even more important for common-law couples who do not have the same legislated protections.

If you find yourself entering, enjoying, or leaving a common-law relationship it is likely worth seeking legal advice to make sure you understand your legal rights and can organize your documents and finances in a way that protects your interests. Many of these apparent issues can be addressed ahead of time through proper planning and understanding both spouses’ expectations and responsibilities.

If you have any questions regarding your separation, common-law relationship, or estate planning options please do not hesitate to contact our office and we will be happy to put you in touch with the right lawyer for your needs.