Family Lawyer in Mississauga

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Marriage vs. Common-Law: What You Need to Know

With the marriage rate decreasing and divorce rates increasing, I am finding that I am getting more and more questions about common-law relationships. Divorce and separation are expensive, stressful, and life-altering– so many wonder why they should go through the marriage process in the first place. However, before swearing off marriage entirely it’s important to understand common-law relationships as it is often not the same as marriage.


There are many misconceptions about common-law relationships and rights arising from separation. Some people think that common-law couples have the same rights as married couples when they separate. But this is not the case in Ontario. Few rights still arise between the common-law spouses, based on the length of the relationship or if a child is born/adopted during a relationship.


In this blog, I will address and answer the most frequently asked questions I receive about common-law spouses’ rights and responsibilities.


  1. Does A Common-Law spouse have Property Rights?


Unlike married couples, common-law spouses do not have statutory property rights. A common-law spouse will only receive a share of the assets that were purchased as a joint family venture. If common-law spouses own an asset jointly, one spouse can bring an application in the court for partition and sale under the Partition Act to have the asset sold. The law is conflicting as to whether a common-law spouse can apply for exclusive possession of a home, unlike a married spouse who can apply under section 19 of the Family Law Act.


  1. Is Common-Law Spouse eligible for Spousal/Child Support?


Under the Family Law Act, a common-law spouse is eligible for spousal support, subject to some qualification. In order to qualify for spousal support, the spouses must have cohabited with each other for at least 3 years continuously or have a relationship of some permanence that resulted in having a child – which also includes adopting a child.


For cohabiting couples, the obligation to pay child support under the Family Law Act is different than the obligation under the Divorce Act. Under the Family Law Act, a parent’s obligation to support a child is defined by if the child is a minor or is enrolled in a full-time program of education. Whereas under the Divorce Act, the definition of a child of the marriage is broader and includes a child who is even the age of majority, under the charge of parents, but unable to acquire the necessities of life due to illness, disability, or some other cause. Regardless, a common-law paying parent will have the same liability to pay child support under the Child Support Guidelines as the married parent – based on the residential arrangement of the child (ren).


  1. Can a Common-Law Spouse Get Custody/Access to Child (ren)?


A common-law spouse, as a parent, can apply for custody and access to the child (ren) of the relationship. Unlike married spouses who apply for custody and access under the Divorce Act, common-law spouses apply for custody and access under the Children’s Law Reform Act. There is no difference in residential arrangements of the child (ren) for common-law parents – it could be shared custody, split custody, joint custody, or sole custody with access arrangements.


  1. Should Common-Law Couples Enter into A Cohabitation Agreement?


Common-law couples can enter into a cohabitation agreement. It can be signed at any stage — before they start cohabitation or any time before they separate. This cohabitation agreement can be declared to become a marriage agreement if the couple decides to marry eventually. Common-law couples can deal with all aspects of their relationship in a cohabitation agreement and can also decide on their obligations in case the relationship ends. The only limitation imposed on the cohabitation agreement is that it can’t deal with custody or access issues of the child (ren).


Overall, it’s important to understand the differences between common-law and marriage relationships before you decide what kind of arrangement you want with your partner. The best advice is to consult with a divorce/family lawyer to discuss your position and what you are entitled to before you are shocked if/when the relationship falls apart.


Have any other questions about common law or marriage that were not answered in this blog? Send them to me at [email protected]