How Ontario Defines Common Law Marriage

A common-law marriage is an alternative marital arrangement between people who want to live together and maintain a serious relationship. Due to its relative flexibility and absence of formality, many people prefer a common-law relationship with their intimate partner, instead of going through a formal marriage. 

According to data from Statistics Canada, roughly 1 in 5 Canadians are in common-law relationships. This number has increased by 300% since 1981, and is expected to continue rising as more of our societies depart from traditional thoughts and arrangements about marriage. 

While a common-law marriage can be more flexible however, it is important to understand that it has legal consequences parties should be aware of. Many people do not know this, but being in a common-law relationship may not provide many of the rights that married couples may be entitled to. Depending on the nature of your relationship with your spouse and the possibility of separation, this may put you at a disadvantage. 

In addition, the rules relating to common-law relationships differ widely across the whole of Canada, meaning there are specific rules to common-law marriage Ontario that may not exist elsewhere. As a result, it is important to understand what “living in common-law” really means and its implications for you and your family.

When two people have been in a romantic, and serious, relationship for a while, you may see people start referring to them as being common-law partners. Some couples in such relationships may see themselves being “as good as wed”, while others simply do not give any thought to it. 

Regardless, being in a common-law relationship means more than just having a long-time romantic relationship with a person. In Ontario, a common-law marriage is a relationship where people cohabitate as a married couple for all intents and purposes, without actually having a formal marriage. 

They live together, share finances, have common friends, share an emotional connection and have a sexual relationship. Usually, when all these things are present, they are said to have a conjugal relationship and this is why they are regarded as being in a common-law marriage. They may also have children together, whether biological or adopted. 

People enter into common-law marriages for various reasons. Some simply want to focus on other things first, such as getting their own home, consolidating a job position or just getting to know and be comfortable with their intimate partner first. Others prefer the informal nature of the relationship and do not want to burden themselves with the extra formality of a legal marriage. 

But understand that, while Ontario law does not expressly regulate common-law marriages, there are still several ways the law applies to these relationships. For one, not all people living in a conjugal relationship will be regarded as being in a common-law relationship. There are legal requirements that must first be met.

Under Ontario law, specifically Section 29 of the Family Law Act (FLA), people may be regarded as being in a common-law marriage if they: 

• Lived together in a conjugal relationship for a continuous period of 3 years; or 
• Have a child together, by birth or adoption, and have cohabitated in a relationship of some permanence

This means people who have not lived together in a conjugal relationship for up to 3 years, or who have experienced a long break in their relationship during the period, may not be regarded as a common-law couple. But if they have a child together, they do not need to show they were together for any number of years. It would be enough that they both regard the relationship as being permanent or exclusive.

Compared to a common-law marriage, a formal marriage is a full legal intertwining of romantic partners under a process provided by law. While you don’t really need to do anything to enter into a common-law relationship, there are formal steps that parties must take to be legally married. This includes obtaining a marriage certificate. 

As mentioned above, one advantage that a common-law marriage enjoys over a formal marriage is its informality and flexibility. However, married couples usually have far more rights than those in common-law marriages. 

Some of these rights include the right to spousal benefits during the course of the marriage. For instance, a formally married individual may be entitled to certain workplace benefits that take the fact they have a spouse into consideration. Formally married spouses are also entitled to inherit each other. This means if either spouse dies without the other making a will, the surviving spouse will be most likely to inherit, alongside any children of the marriage. 

Apart from the range of benefits available to formally married spouses during the marriage, a formal marriage also protects the spouses during separation or dissolution of the marriage. More on this below. 

Common-law marriages are not exactly defined or explained under statute. As a result, there is no real legal stipulation of what it will take to end a common-law marriage, unlike a formal marriage where a divorce, annulment or legal separation will be necessary. 

The FLA does not specify when a common-law couple has separated, although it mentions that they should have a continuous relationship of at least 3 years to maintain their status. This implies that if there is a break in your relationship, or if your relationship loses its permanence where you have children, then a separation may have occurred. 

Under the Canadian tax laws, a couple in a common-law relationship is considered to have separated when they experience a breakdown in their relationship for a period of at least 90 days. According to the laws, the breakdown is incomplete unless the couple was voluntarily living apart because of the breakdown and they continued living apart during the period. 

Having to live apart involuntary, because of a work posting or any reason other than a breakdown in the relationship, will not amount to separation.