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It is becoming more and more popular for couples to choose to enter into common law relationships. A common law relationship is one where two people live together and share their lives, but they are not legally married.

The concept of unmarried couples choosing to live together is becoming more and more popular. The stigma that previously accompanied common law relationships has fallen by the wayside as social attitudes and the law have undergone significant changes.

What is a common law spousal relationship?

Bear in mind, that simply because two people have chosen to live together, they may not have any cohabitational rights or obligations. A true common law relationship exists when the parties engage in a marriage-like relationship. For example, a marriage-like relationship is one where the parties live under one roof, have a romantic and sexual relationship, provide services for each other, support each other, and participate in social activities together.

The eight aspects of a spousal relationship that a court will consider if it is asked to determine whether a common law relationship existed are as follows:

  • Cohabited continuously for a period of not less than three years
  • Shelter
  • Sexual and Personal Behaviour
  • Services
  • Social Life/Interactions
  • Societal Attitudes (ie, did the community treat them as a couple?)
  • Support
  • Children

While a court will consider each of the eight elements listed above, they can be present in varying degrees, or some elements may not be present at all, and the court can still find a common law relationship existed. There is no single factor that can speak to whether a common law relationship existed so the court will consider all relevant factors.

Why not just get married?

There are countless reasons why couples may chose living together over tying the knot. Some couples prefer the more traditional approach and elect to get married, but others may decide a common law relationship is best for them.

First, there may be a legal impediment preventing a couple from marrying. An example of this is where one party has previously been married but is not yet officially divorced. Because there is no requirement for couples to actually obtain a divorce after separation, couples can be separated, and not divorced, for an indefinite period of time. If a party to a relationship is not yet divorced, the law prevents them from remarrying.

Also, if you have been married before you may harbour emotional and economic scars that can make you not want to remarry. Marriage invokes certain legal rights and obligations that a previously married person may wish to avoid.

An additional consideration for previously married couples is that merely living together as opposed to getting married may allow the previously married party to continue to receive benefits such as support payments that would cease if they were to remarry.

Even if you haven’t been married before, deciding not to get married may be the right path for you and your partner. Some people choose not to get married for religious reasons; others simply reject the traditional concept of marriage encompassed by breadwinning and homemaking. Couples may also choose common law relationships over marriage today simply because it is more acceptable than it used to be. Because there is less of a stigma associated with living together, couples are more inclined to do it.

Finally, a lot of young couples choose to enter a common law relationship as kind of a “trial run” for marriage.  As your relationship gets more serious, and you begin spending more and more time together, moving in together may be a great way for you see if the relationship is suited for marriage. If it works, you can always decide to get married later on.

Regardless of the reason people choose to enter into common law relationships, the fact remains that these relationships are becoming more and more popular. Twenty years ago census data indicated that common law couples represented roughly 7% of the population, whereas in 2006 the percentage had increased to approximately 15%. Because of the growing popularity of these kinds of relationships, we suggest that those considering common law relationships understand the legal consequences of doing so.

Are there any legal benefits or obligations for common law couples? 

Despite the fact that there has been a significant change in social attitudes regarding common law relationships, the law has only made small steps to adapt. Originally, there were no legal benefits awarded to those who chose to live together and not marry. Now, the law awards some benefits by way of spousal support and limited property rights to unmarried couples who live together, although the approach has been rather cautious.

Since the early 2000’s there have been many laws passed with the goal of assimilating the rights and obligations of common law couples. It is worth noting, however, that in Ontario no laws have been passed that give cohabitational couples spousal property rights or intestate succession rights.

As cautious as the law has been with regards to recognizing and bestowing benefits on common law relationships, it has been especially guarded in the benefits it grants to same-sex couples. Recently, civil rights groups advocating for same-sex couples (married or unmarried spouses) have generated claims challenging the restriction that some benefits are only available to married and unmarried heterosexual couples. Specifically they have been protesting rights associated with pension benefits, welfare assistance, workers’ compensation, insurance benefits, and tax advantages.

While the law is making progress, and common law couples now have some rights that married couples enjoy, the evolution has been slow. If you have specific questions regarding your rights as a common law partner, you will need to seek the guidance of your lawyer.

Should I get a cohabitation agreement?

Because of the changing social attitudes and increasing acceptance of common law relationships, courts now will enforce cohabitational agreements entered into by common law coupules.

If you plan on entering into a cohabitation agreement, be sure that the contract is in writing, signed by both parties, and witnessed. General contracts law controls the enforceability, and agreements entered into under duress, undue influence or agreements that are unconscionable will not be upheld. It is advised that parties consult with a lawyer prior to executing a cohabitation agreement.

The contents of a cohabitation agreement may address the issue of future separation, and dictate how property will be split among other issues. However, even if your cohabitation agreement contemplates separation, we still suggest you and your former partner enter into a separation agreement should you separate. This is especially true if you have children, as the separation agreement will discuss support, custody and access rights.

In sum, you and your partner may decide that a common law relationship is right for you. Regardless of your reasoning, this status can impose certain legal implications. It may be wise for you and your partner to entertain the idea of entering into a cohabitation agreement to address certain issues such as property rights and support.

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