Understanding Common Law: Roommate's Claim And Legal Rights

Whether or not roommates can claim common law depends on the nature of their relationship and the location. In British Columbia, Canada, for example, a couple must cohabit in a marriage-like relationship for two years to be deemed common-law spouses. This determination is made on a case-by-case basis, considering factors such as joint bank accounts, sexual relations, tax filings, and how they present themselves to others. In contrast, for tax purposes, common-law status in Canada is generally achieved after one year of cohabitation, while for family law purposes, it can take up to three years in certain provinces. It is important to note that the definition of common-law status and the requirements for claiming it may vary depending on the specific region and the purpose for which the claim is being made.

Characteristics of Common Law Marriage

Common-law marriage requirements vary by state

In the United States, a common-law spouse is a person with whom you’ve made a mutual agreement to be married with a certain date, not a promise to marry but an agreement that "we are married as of today". Common-law marriages are no longer common, with most states in the US having stopped allowing these informal marriages through laws or court decisions. Only eight states in the US (plus Washington, D.C.) allow couples to establish new common-law marriages, and some other states recognize these marriages if they existed before a certain date.

The requirements for a common-law marriage to be recognized must be considered by couples contemplating filing joint returns. These requirements vary from state to state and may change over time. For example, some courts have pointed out that cohabitation isn't as important as it used to be when deciding whether live-in partners are in a valid common-law marriage, given that many unmarried couples now live together without intending to marry. However, it would be close to impossible to convince a judge that a couple intended to be married if they don't live together. Similarly, not sharing the same last name when moving in with a partner doesn't necessarily signal that a couple isn't married, as many married people nowadays don't share the same last name.

In general, both partners must intend to establish a common-law marriage, sharing their lives in a committed, intimate relationship with all the legal and social responsibilities of marriage. This includes being old enough to get married (usually 18 years old) and having the mental capacity to enter into a marriage.

In British Columbia, Canada, to prevent being classified as "common-law" and retain one's independence, it is best to avoid the trappings of a "marriage-like" relationship. This includes not having joint bank accounts and assets, and not holding oneself out to others as a married couple.

Roommates can be considered sub-tenants

In the United States, a roommate is generally defined as a person (usually unrelated) with whom one shares a living space. A roommate is not named on the lease of the apartment they share with the prime tenant or leaseholder. Roommates are permissible under Real Property Law § 235–f without notice to or permission from a landlord.

A subtenant, on the other hand, is someone who rents an apartment from the prime tenant (rather than from the landlord) for a period when the prime tenant is temporarily away. The presence of an unrelated individual in an apartment, coupled with the absence of the tenant of record, can lead to the conclusion that a sublet has occurred.

In San Francisco, for instance, a master tenant is a tenant who takes on a roommate whose name is not on the lease. That roommate is considered a subtenant. A master tenant acts as a landlord to the subtenant and cannot charge them more than a proportional share of the total rent they pay to the landlord.

To avoid confusion between roommates and subtenants, it is important to understand the legal definitions and differences between the two. The distinction primarily revolves around whether the primary tenant is contemporaneously occupying the apartment with the roommate or subtenant. If the primary tenant lives in the apartment with their roommate, they are more likely to be considered a roommate. However, if the primary tenant is temporarily absent, and the occupant rents the space from them, the occupant is more likely to be considered a subtenant.

In summary, roommates and subtenants have distinct legal definitions and implications, particularly regarding rent, consent from landlords, and the presence or absence of the primary tenant.

Roommates can be considered lodgers

In the United States, a common-law spouse is someone with whom you've agreed to be married as of a certain date, not a promise to marry but an explicit "we are married as of today" agreement. Roommates, on the other hand, are typically unrelated individuals with whom you share a living space. While it is possible for roommates to be considered common-law spouses, it is not a given, and the determination is made based on the nature of the relationship.

In the context of tenancy and housing, a roommate can be considered a lodger, and the rights of a lodger can vary depending on their tenancy type. For example, in the UK, a lodger is likely to be considered an excluded occupier, which means they can be evicted with 'reasonable notice', typically equal to the length of the rental payment period. On the other hand, a lodger with basic protection has more rights and requires a court order for eviction.

The tenancy type of a lodger or roommate can be influenced by factors such as the length of the let and the formality of the arrangement. For instance, a licence for a lodger to stay may be open-ended in informal situations, like a friend staying on an as-and-when basis.

In terms of financial benefits, lodgers or roommates in the UK may be eligible for the housing element of Universal Credit or Housing Benefit, provided they meet certain conditions, such as demonstrating evidence of renting and paying rent. This benefit is typically not available if the lodger lives with close family members. Similar considerations may apply in other countries, such as Canada, where individuals may need to determine if they are considered roommates or common-law spouses for tax and benefit purposes.

Joint bank accounts and assets can indicate common-law marriage

In the context of common-law marriage, joint bank accounts and shared assets can be indicative of a couple's intention to create a marriage-like relationship. While having separate bank accounts does not necessarily imply a lack of common-law marriage, joint accounts can suggest a level of financial interdependence and mutual agreement that is consistent with a marital relationship.

In a common-law marriage, the court may consider joint bank accounts and shared assets as evidence of a mutual agreement to be married. This is particularly true if the couple holds themselves out as married to the public and engages in behaviours typically associated with marriage, such as combining finances, sharing property, or making significant purchases together.

It is important to note that the presence of joint bank accounts and shared assets does not automatically establish a common-law marriage. The determination of a common-law marriage is based on multiple factors, including the couple's behaviour, their public representation of their relationship, and the specific laws of their state or jurisdiction.

To prevent being classified as common-law spouses, individuals should avoid creating a marriage-like relationship. This includes not holding themselves out as spouses, not sharing finances or property, and not entering into agreements or behaviours typically associated with marriage. Maintaining separate bank accounts and assets can be a way to demonstrate financial independence and avoid the implication of a common-law marriage.

In summary, while joint bank accounts and assets can be a factor in indicating a common-law marriage, it is not the sole determinant. The court will consider the totality of the couple's relationship, their intentions, and their public representation when making a determination about the existence of a common-law marriage.

Common-law marriage can affect immigration status

In the United States, a common-law spouse is a person with whom you've made a mutual agreement to be married as of a certain date. Common-law marriage is recognized by some states, and the parties involved are considered to be married. To be valid for immigration purposes, the couple must live in the same jurisdiction and meet the qualifications for common-law marriage in that jurisdiction.

The U.S. Citizenship and Immigration Services (USCIS) recognizes common-law marriages for naturalization purposes if the marriage is valid and recognized by the state in which it was established. This is known as the "place-of-celebration rule." Even if the naturalization application is filed in a jurisdiction that does not recognize common-law marriage, the marriage may still be valid for immigration purposes as long as it was valid in the place where it was celebrated.

To prove a valid common-law marriage, the couple must have held themselves out in public as a married couple, and their friends, family, and acquaintances must have believed them to be married. This includes actions such as introducing each other with the same last name or as "my husband/wife," and signing official documents as a married couple, including bank accounts, credit cards, rental agreements, and tax returns. The couple must also have been legally eligible to marry and intended to do so.

It's important to note that common-law marriages can be beneficial for immigration status. A U.S. citizen or permanent resident can petition for their common-law spouse to obtain a green card, even if they have moved to a state that does not recognize such marriages. Additionally, under the Violence Against Women Act (VAWA), undocumented immigrant spouses in abusive marriages can seek protection and benefits, including the right to file a self-petition for green card status.

To avoid being classified as common-law spouses, roommates should not hold themselves out as a couple or married and should not rent, lease, or own assets together.

Frequently asked questions