Common Law Relationships and Marriage - What's the
Difference?
By Jodi Armstrong,
Family Law
These days, many couples are choosing not to get married
and instead live together in a "marriage-like"
relationship. While the relationship is intact, there aren't
many practical differences between married and unmarried
cohabitants. One person may be financially dependent on
the other person, they may have children together, or they
may own property together. Upon separation, however, there
are some differences with respect to how the courts will
deal with the common issues arising as a result of the breakdown
of a relationship.
Spousal Support
The factors for determining if, upon separation, one spouse
will receive spousal support from the other spouse are the
same whether for married and for unmarried couples.
The difference is, a married spouse has a right to make
a claim for spousal support automatically. An unmarried
spouse must have been living with their common law partner
for a minimum of three years or living in a relationship
of some permanence if they are the natural or adoptive parents
of a child.
Property
For married spouses, there is a presumption that, upon separation,
there will be an equal division of family property. The
spouse who has acquired more property in their name during
the marriage will be required to make an equalization payment
to the other spouse. There is no such presumption for common
law partners.
Is it discriminatory to have laws that presume there will
be an equal division of family property for married people
but that do not apply to people living in a common law relationship?
The Supreme Court of Canada addressed this question in December
2002 and determined that it was not discriminatory to treat
married couples differently. The Court decided that when
two people marry, they are assumed to have agreed to a partnership
in which both spouses' contributions, whether financial
or otherwise, are considered to be equal. By consenting
to get married, the individuals are demonstrating that they
intend to share in each other's assets and in each others
debts. Each spouse is, therefore, entitled to an equal share
of the property upon marriage breakdown.
The fact that a couple decides to live together is not
enough, on its own, to show that they intended to share
their property and share in the other's property. The courts
will not impose the same financial partnership on an unmarried
couple because the option to enter that kind of partnership
relationship existed (they were free to marry or to enter
another contractual agreement with one another) but, for
whatever reason, they chose not to do so. The court held
that the choice not to marry and enter an economic partnership
ought to be respected.
Although unmarried couples don't have an automatic right
to a division of property on separation, depending on their
circumstances, they may have other property rights. For
example, an individual can claim that there has been an
unjust enrichment and request relief from the courts if
their spouse has been enriched by their efforts and contributions
and there is not any legal reason for that spouse to have
been so enriched. It would be "unjust" to allow
one individual to benefit from the efforts of another without
some sort of compensation. The burden of proving unjust
enrichment, however, is on the individual requesting relief.
The court will not assume, as they do for married couples,
that there is a right to share in property acquired during
the relationship.
Matrimonial Home
When a married couple separates, a family residence is given
special treatment. Regardless of whose name is on title,
both spouses have a right to stay in the home (until a court
order says otherwise) and, even if it was acquired before
the marriage, the value of the home will be included in
the division of family property.
For common law partners, the family residence is treated
the same way as any other property. A spouse who is not
on title does not have any automatic property rights including
the right to possession.
Children
The courts address both child support and child custody
in the same way regardless of whether the parents are married
or not. Every parent has a legal obligation to support their
child(ren). The court will make an order for child support
based on the number of children and the income of the payor
spouse. Child custody is always determined based on what
is in the best interests of the child.
Conclusion
The decision to marry or live in a common law relationship
should not be made lightly. There are significant legal
consequences that could flow from either type of relationship
and couples should carefully consider the need for a contract
with one another before cohabiting and before marriage.
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The above is not intended to constitute
legal advice. Please contact a lawyer to clarify your
legal rights.
