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In Canada, common-law partnerships and marriages come with distinct legal differences that can significantly impact everything from property rights to spousal support. While both types of relationships involve shared lives and responsibilities, the legal frameworks that govern them in Ontario are different. Understanding these differences is crucial for couples planning their personal and financial futures.
At Gelman & Associates, our lawyers have experience handling family law matters when it comes to both common-law and married spouses. Whether you have questions about shared property, support payments, or ending your relationship, we’re here to help. To speak to us about your family law concern, schedule a consultation with our team today.
What is a Common Law Relationship in Ontario?
Under Ontario law, no specific definitions exist when it comes to common-law relationships. Instead, the Family Law Act (FLA) only defines common-law relationships through spousal support guidelines. Although two people in Ontario may be considered common-law partners if they have been continuously living together in a conjugal relationship for several years, they are not afforded the same rights and entitlements as married spouses. For example, common-law couples are not entitled to an equal division of net family property upon their separation as married couples are.
What Are the Differences Between Common Law Relationships and Marriages?
There are a variety of legal differences between common-law and married partners. This is due to the fact that Ontario law specifically defines marriage and the legal entitlements of married couples but does not do the same for common-law partners.
Some of the most significant differences when it comes to how common-law and married couples are treated under Ontario law include:
Property Rights
There is a considerable difference between common-law and married spouses when it comes to their property rights. For married couples, the FLA dictates that an equalization (or division) of net family property must take place upon separation or divorce. There is a specific formula that is followed and adhered to by lawyers, judges, or courts that are involved in the divorce process. As a result, married couples are legally entitled to receive a certain amount of the property they amassed during their marriage upon its dissolution.
For common-law couples, no legislation exists that governs property division. In general, common-law spouses are not legally obligated to divide property they share during their relationship. As a result, it can be more difficult for common-law couples who separate to divide any shared property in a legal capacity. However, certain principles do exist that may afford common-law partners some degree of property rights following separation. These include:
- Unjust Enrichment: Unjust enrichment is a legal principle that arises when one party benefits at the expense of another in circumstances that the law views as unjust. Regarding common-law relationships, an unjust enrichment claim may be filed when one partner feels that they have contributed extensively to the value of a certain asset (such as a savings account or real estate property) that belongs to another partner. In these cases, you can pursue financial or legal compensation on the basis that it is unjust for your partner to retain the full value of the asset that you contributed to.
- Resulting Trusts: These claims can be filed when one party contributes purchase money to the acquisition of an asset but the asset is not registered in their name. If the original party can prove that it was not in their intention to make a gift of the asset in question, they may be entitled to a certain portion of the asset or other means of legal recourse.
Although property division does not commence automatically as it does for married couples, there may still be legal options available to common-law partners who wish to split assets. Navigating what you may or may not be entitled to can be confusing. You should consult with a family lawyer if you have questions about your rights following the end of your common-law relationship or marriage.
Spousal Support
Although the FLA does set out guidelines for spousal support when it comes to both common-law relationships and marriage, its treatment is different in each case. For married couples, either spouse is entitled to seek spousal support. Although the duration and amount of spousal support will vary, married couples are entitled to pursue support when their marriage ends, regardless of the amount of time they were married.
In common-law relationships, the law does allow partners to seek spousal support as long as they meet certain conditions. To be eligible for spousal support, common-law partners must have:
- Lived together for at least three years, or
- Have a child together and have lived together in a relationship of some permanence (although the amount of time does not matter)
It is important to note that child support obligations are not affected by whether a couple is married or common-law. In both cases, the biological parent of a child can be held legally and financially responsible for providing for that child, regardless of the type of relationship they have with the other parent.
Ending the Relationship
When you decide to separate as a common-law or married couple, the process will be very different. Married couples must end their marriage legally through a formal divorce. As mentioned above, a divorce will involve the equalization of net family property and is normally executed with the aid of a legal team. Divorces can take longer and be more costly, as each partner must ascertain what assets they are legally entitled to. In the case that a couple divorces and cannot agree on the terms of their separation, they may have to go to court and have a judge rule on the appropriate division of their assets.
On the other hand, common-law couples have no obligation to end their relationship in a legal capacity. They can break up in any manner that they see fit. If there is no cohabitation agreement in place, there is no obligation for common-law couples to split their assets. In the case that a cohabitation agreement does exist, items outlined in the agreement must be adhered to upon the ending of the relationship. As mentioned above, in cases of unjust enrichment or resulting trusts, a common-law partner may be entitled to pursue legal or financial compensation for assets they shared throughout their relationship.
If you would like to know more about your legal options when it comes to ending your relationship, you should connect with an experienced family law lawyer. For a consultation, contact our family law team at Gelman & Associates today.
Prenuptial Agreements in Common Law Relationships and Marriages
In Ontario and Canada, prenuptial agreements are referred to as marriage contracts or cohabitation agreements, depending on the type of relationship that exists between partners. Although they have different names, partners can outline the same kinds of rights and entitlements they expect to receive upon the end of their relationships. When common-law couples get legally married, their cohabitation agreement may automatically become their marriage contract. In these types of agreements, you can decide in advance on matters such as:
- Rights to share in the other person’s property
- Spousal support obligations
- Entitlement to estate rights
- And more
Whether you are married or common-law, it is always a good idea to create a prenuptial agreement in the event that you separate. When you possess a marriage contract or cohabitation agreement, you gain the advantage of:
- Certainty: In the case that your relationship ends, you can feel confident that you will not need to go to court to work out the details of your separation or the division of your assets.
- Advanced Thought & Consideration: When you create a marriage contract or cohabitation agreement, you are putting in work early to prevent extra stress or hardship for your future self. Having a solid cohabitation or marriage agreement can take pressure off your relationship and allow for better peace of mind.
It is crucial to be aware that cohabitation agreements and marriage contracts cannot address child support, parenting time, or decision-making responsibility. If you require assistance drafting an agreement or would like to know more about what you can include, you should speak with a family lawyer.
Do You Have More Questions About Common Law or Marriage? Reach Out to Our Family Lawyers Today
It is important to understand the legal differences between common-law relationships and marriages before entering into either. Namely, you should be aware that your legal rights change significantly depending on the type of relationship you are in. Regardless of the path you choose, it is always a good idea to create a marriage or cohabitation agreement to safeguard your interests in case your relationship ends unexpectedly.
At Gelman & Associates, our family law lawyers can help you identify your legal rights and obligations upon your separation, no matter what kind of relationship you are in. Whether you require help drafting an agreement or would like to divide your assets, we can help. To schedule a consultation with our team, contact us today.
Disclaimer: For specific legal advice on your family law matter, please consult with a family law lawyer. The content in this article is not intended to act as legal advice and is instead intended to act as a general overview of a legal topic.
