Have you ever wondered what the difference between marriage & common law is? Over one-fifth of all couples (21.3%) were living common law in 2016, more than three times the share in 1981 (6.3%) according to Statistics Canada. Couples in common law unions will often say that they do not need a document to prove their commitment to each other. They say, “What difference does a piece of paper make?” In their view, there is no difference between their common law union (cohabiting but not married) and that of a couple that is legally married. Despite this romantic notion, the fact remains that legal, married status versus unmarried status does make a difference and does affect the outcome of the issues arising out of a separation.
When a couple separates, whether they are common law or legally married, an immediate need to understand one’s rights and obligations arises. Unmarried spouses who are cohabiting are often under the misconception that they have the same legal rights as legally married spouses. There are significant differences between the property rights of legally married spouses and common law spouses.
Property Rights: In Ontario, the Family Law Act provides a system of property settlement for legally married spouses. The spouse with less family property on date of separation has the right to a payment of money (equalization) from the spouse that holds the greater value of family property in their name. Calculating this payment of money (equalization) can be complicated but in the end, the purpose is to ensure that both legally married spouses end up with an equal value of property accumulated during the marriage.
Legally married spouses also have the right to possession of the matrimonial home. Both spouses have a right to continue living in the matrimonial home after separation, even if only one spouse owns the home. This right to possession continues until matters are settled in a Separation Agreement, court order or divorce. The locks should not be changed until then.
Common law spouses do not have the same property rights as legally married spouses. Common Law spouses do not enjoy the right to equalization of property nor to possession of the matrimonial home. They are only entitled to property they legally own. Establishing property rights outside of titled ownership in a common law union is difficult and is the exception. Depending on the length of the cohabitation, whether children are involved and the extent of valuable contribution(s) to the property, a non-titled common law spouse may succeed in establishing a right to a part of the value of the property on the basis that it would otherwise be unfair. These trust claims usually require litigation and are usually vigorously defended by the titled spouse.
Support: Entitlement to spousal support for a common law spouse requires three years of cohabitation. Less than three years of cohabitation requires that the couple has a child born of their relationship and that there is a relationship between the parties of some permanence.
For legally married spouses, proving cohabitation for a period of time is not required. Entitlement to support is based on an assessment of needs and ability to pay and the amount and duration of support are based on the means, needs and circumstances of the couple during the marriage.
Support for children of a married couple is governed by the Divorce Act. Support for children of differences in the legislation, usually, the result in the child support that a court will award in the two circumstances does not differ greatly.
It does not matter whether common law or legally married on separation there are many important issues that need to be resolved. Call one of our lawyers to help you get what you’re entitled to.