How Ontario Defines Common Law Marriage

Common-Law Marriage Ontario

  • Roughly 1 in 5 Canadians are in common-law relationships, this number has increased by 300% since 1981.

  • You are in a common-law “marriage” if you have lived together in a conjugal relationship for a continuous period of 3 years.

  • Equalization of family assets does not apply automatically in common-law marriages.

  • Nothing is automatic for Common-law couples in Ontario, you will also have to decide on the division of family property, spousal support and child arrangements after a relationship breakdown.

  • A partner who made financial or non-financial contributions towards securing the home may protect their rights on the basis of a constructive trust.

  • The law does not give common-law couples as much protection as it provides formally married spouses in a divorce.

  • Depending on the nature of your relationship with your spouse and the possibility of separation, this may put you at a disadvantage.

  • The CRA considers a couple in a common-law relationship to have separated when they experience a breakdown in their relationship for a period of at least 90 days.

  • Married couples usually have far more rights than those in common-law marriages.

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.

What is a common-law marriage?

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.

What is considered married by common law?

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

How long do you have to be together to be common law married?

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.

Formal marriage vs common-law marriage

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. 

How does separation occur in a common-law marriage?

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. 

Do unmarried partners have any rights?

Usually, in a formal marriage, couples will need to determine issues relating to division of marital property, spousal support and child custody after a divorce. While this will not apply to common-law marriages in some provinces, common-law couples in Ontario will also have to decide these matters. 

It is possible for the partners to enter into a cohabitation agreement before beginning their common-law marriage in order to settle these issues from the start. Or they could enter into a separation agreement to provide for these issues after separation. They can do this either with the help of a lawyer or a certified professional mediator. 

If the parties cannot agree on these matters, then the court will have to decide on their behalf. But it is important to be careful here. The law does not give common-law couples as much protection as it provides formally married spouses in a divorce. Here are some of the ways in which the court may decide on these issues: 

Is my partner entitled to half my savings?

  • Division of assets: Under the FLA, spouses in a formal marriage are entitled to an equalization of family assets. But this right does not apply automatically in common-law marriages. Each person leaves the relationship with all the assets, debts and other property held in their name. However, a person who has made tangible contributions in the marriage may ask the court to make their partner pay them back. They can do this by making a claim for a resulting trust, constructive trust or unjust enrichment. 

How are assets divided in a common-law relationship?

  • Family property: Similar to the above, common-law partners do not have a right to equalization of family property, such as the matrimonial home. If only one partner’s name is on the title documents, then they are deemed owner of the property. But a partner who made financial or non-financial contributions towards securing the home may to protect their rights on the basis of a constructive trust. 

Can my common law spouse take my house?

  • Possession of the matrimonial home: Although one partner may own the matrimonial home in the eyes of the law, both have equal rights to use and enjoy the home. The court may also make an order of exclusive possession in favor of one spouse if it regards this as necessary to stop domestic violence or protect the children. 

What is spousal support for common-law?

  • Spousal support: Finally, it is possible to request for spousal support in a common-law marriage. It is the responsibility of the party that wants spousal support to request it though. The court will not make that decision on its own. In awarding support, the court may consider how much of a financial disadvantage the requesting has been put to by the separation, and the ability of the other partner to pay.

Final Thoughts

Navigating the complexities of a common law relationship in Ontario can be challenging. The Family Law Act and other legal frameworks provide guidance, but the nuances of common law relationships, spousal support obligations, and property division can be overwhelming.

Whether you’re considered common law partners or married couples, the implications of separation are significant. From child custody to spousal support, the legal obligations are vast and varied. A separation agreement, often facilitated by a divorce mediator, can help to clarify these obligations and ensure a fair division of net family property.

Cohabitation agreements can offer further guidance for common law partners, outlining the rights and responsibilities of each party. These agreements, much like marriage contracts, can provide a roadmap for property division, financial support, and other aspects of the relationship.

However, it’s important to remember that the Ontario government and federal government may have different definitions of common law status. For instance, you may be considered common law partners for tax purposes after living together for at least one year, but for family law matters, the period of time is typically at least three years.

When a common law relationship ends, it’s crucial to seek legal advice. The Supreme Court and family court have established precedents that can impact your situation, particularly in cases involving unjust enrichment or constructive trust claims.

In conclusion, understanding your legal rights and obligations in a common law relationship is essential. Whether you’re dealing with a joint bank account, a matrimonial home, or child support, the law recognizes your rights and obligations. It’s always advisable to consult with a legal professional for further guidance.

Remember, every relationship is unique, and the law is there to protect the rights of all parties involved. Whether you’re in a common law relationship or a marriage, understanding your legal rights and obligations can help you navigate the complexities of family law in Ontario.

At DTSW:

We understand that navigating the complexities of a common-law relationship in Ontario can be challenging and emotionally taxing. You’re not alone in this journey. Our team of Family Mediators and Accredited Divorce Financial Analysts at Divorce the Smart Way (DTSW) are here to guide you through this process.

Our Soft Landing Divorce Settlement Method is designed to help you transition smoothly into the next phase of your life. We aim to provide clear and straightforward separation agreements, ensuring a secure future for you and your loved ones. We believe in sidestepping excessive conflicts, confusion, and costs often associated with these proceedings.

We know you’ve landed on this page because you’re seeking answers. We encourage you to reach out to us. Let’s discuss your situation, answer your questions, and explore how we can assist you in crafting a path forward that respects your needs and aspirations.

Don’t hesitate to take the next step. Schedule a Get Acquainted Call with us today. We’re here to help you divorce the smart way, ensuring a soft landing for you and your family.

 

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About the Author:
Ken Maynard ADFA, Acc.FM

I assist intelligent and successful couples in crafting clear and straightforward separation agreements, ensuring a smooth transition towards a secure future. This is achieved in four meetings or less, sidestepping the excessive conflicts, confusion, and costs often associated with legal proceedings. You have the option to collaborate with me via video conference or in-person with a DTSW associate at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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