Keith Mack
Common-law marriage is a way for two people to be considered legally married without having a marriage licence or ceremony. In the US, only nine states recognize common-law marriage: Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire. In Canada, a couple is considered to be living in a common-law relationship if they have been living together intimately for at least three years or if they have been living together for less time but have a child together. While the laws surrounding separation in common-law relationships can be vague, common-law spouses can deal with issues of their separation by entering into a formal Separation Agreement. This can set out how property will be divided, who the children will live with, and how much child support and spousal support will be paid.
Characteristics of Common Law Divorce
| Characteristics | Values |
|---|---|
| Definition | A common-law relationship is defined as two people who live together in a committed "marriage-like" relationship. |
| Recognition | Only nine US states recognize common-law marriage: Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire. |
| Rights | Common-law spouses generally have fewer legal rights than married spouses upon break-up. |
| Child Custody | Rights and obligations with respect to children are the same or consistent with rights and obligations with respect to children of separated legally married couples. |
| Property Rights | Common-law spouses are not legally required to split property acquired when they lived together. |
| Separation Agreement | Common-law spouses can deal with all the issues of their separation by entering into a formal Separation Agreement. |
| Divorce Recognition | Canada generally recognizes a divorce from another country if the divorce was valid under the laws of that country and if one or both spouses lived in that country for a full year before applying for divorce. |
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What You'll Learn
Common-law divorce in Canada
In Canada, a common-law relationship is defined as a relationship in which two individuals live together in a romantic or conjugal relationship for a minimum of one year or have a child together. This type of relationship is legally recognised under federal and provincial laws, often for specific purposes such as taxation, immigration, and family law.
Unlike married couples, common-law couples do not have the same legal rights to property division. Common-law couples have to work out their own arrangements to divide assets. However, many provinces have sanctioned legislation that provides some degree of property division for common-law couples. For instance, if an asset is in both names, then the value of that asset is to be equally divided, and the couple can decide how to divide it. This can be done by one partner "buying" the other out, or by selling the asset and equally dividing the proceeds.
In the case of children, the rights and obligations of separated common-law couples are the same or consistent with the rights and obligations of separated legally married couples. Child support is determined the same way for married parents as for unmarried ones, using the Child Support Guidelines. Additionally, anyone whom the court finds to have acted as a parent to a child may be required to pay child support, and any parent can apply for custody of or access to a child.
When a common-law relationship ends, the involved parties may have legal rights and obligations similar to those in a marriage. They can create a separation agreement that outlines how they will divide their assets, establish child custody and access, and address any other issues related to their separation. Both partners should obtain independent legal advice and ensure their rights and interests are protected before signing the agreement. Once the separation agreement is signed, it can be filed with the court to make it legally binding.
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Common-law divorce in the US
In the United States, a common-law marriage is a way for two people to be legally recognised as married without having a ceremony or obtaining a marriage licence. This typically applies when a couple has lived together for a certain period of time and acts as spouses would, such as by filing joint tax returns or assuming the other's last name.
Currently, only nine states recognise common-law marriage: Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire. If a couple has a legitimate common-law marriage in one of these states and then moves to a state that does not recognise common-law marriage, their union should still be valid under Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause. This clause outlines the duty of each state to recognise the "public acts, records, and judicial proceedings of every other state". Therefore, if such a couple wishes to end their relationship, they may need to pursue a common-law divorce.
It is important to note that the seven-year standard often associated with common-law marriage has no legal foundation. The length of time a couple lives together and other factors, such as having children together, can vary by state. If a common-law spouse dies or becomes disabled, their spouse will be automatically entitled to benefits and assets. However, in the event of an accident or injury, a common-law spouse may have to prove the validity of the marriage to claim benefits, inherit property, or make medical decisions on their spouse's behalf. This can be challenging if the marriage was recognised in another state that allows common-law marriage.
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Child custody and support
In Canada, common-law couples who separate are treated similarly to legally married couples when it comes to issues related to children. This includes child custody and child support. Common-law spouses have the same rights and obligations as married spouses to care for children. This means that they have rights to custody of children and are obliged to financially support them.
In the case that parents cannot decide on who will have custody of the children, the courts will decide based on what is in the children's best interest. The court will consider factors such as financial stability, emotional support, and connection to the child, as well as who is the child's primary caretaker. If the child has special physical or mental needs, the court will also take into account who is best equipped to meet those requirements. In some instances, one parent may receive sole custody if the other is deemed unfit, for example, in cases of domestic violence or financial incapability.
If parents cannot agree on child support, a court can order support payments based on federal and provincial guidelines. These payments are based on the income of the parent who pays support, and if that parent's income increases, the other parent can request an increase in child support payments.
In Texas, when a couple married through common law separates or divorces, child custody is negotiated in a similar way to any other divorce case. The Texas Family Code presumes that parents should be "joint managing conservators", meaning they share decision-making responsibilities about a child. However, if there is family violence or a parent is absent, one parent may be named a "sole managing conservator".
It is important to note that, in general, common-law spouses have fewer legal rights than married spouses upon the break-up of a relationship, especially when it comes to property rights. Therefore, it is recommended to consult a lawyer to understand one's rights and obligations and to ensure that any agreements made are clear, complete, and legally binding.
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Property rights
In the context of common-law divorce, property rights refer to the legal rights and obligations of separated common-law couples regarding the division of assets, such as real estate, vehicles, and other tangible and intangible property.
In a common-law relationship, couples who separate do not have the same property rights as legally married couples. Common-law spouses do not have an automatic right to equalise their net family property acquired during the relationship. They are also not entitled to pursue a property claim under provincial legislation, as a legally married spouse would be. However, a common-law spouse may still have some property rights under common or judge-made law. For example, if they have been living in a property owned by their common-law spouse, they may be able to advance trust claims against their interest in that property.
The laws governing property rights in a common-law divorce can vary depending on the jurisdiction. In common law property states, property acquired by one spouse is generally considered their sole property unless the title or deed includes both spouses' names. In community property states, on the other hand, marital property acquired during the marriage is owned by both spouses equally. These states include California, which offers an option called "community property with rights of survivorship", where the property automatically passes to the surviving spouse upon the death of one spouse.
To ensure a fair division of property and protect their rights, it is essential for individuals in a common-law relationship to consult with a lawyer or legal professional. They can assist in negotiating and finalising the separation, especially when complex issues, such as child custody and support, are involved. In some cases, a Separation Agreement can be entered into by common-law spouses to outline how property will be divided and other issues that need to be resolved.
In Canada, the laws surrounding common-law separation can vary depending on the province and the specific issues being addressed. For instance, laws related to child custody and support are consistent regardless of whether the parents were legally married or in a common-law relationship. However, the division of property can differ significantly between common-law and legally married couples.
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Separation agreements
In Canada, a common-law relationship is defined as two people who live together in a committed "marriage-like" relationship. Common-law couples can dissolve their union at any time, with no required legal action. However, the process of separating can be very complicated, and serious legal and financial matters must be negotiated and finalised.
In Ontario, common-law couples are considered to be living in a common-law relationship if they have been living together intimately for at least three years or if they have been living together for less time but have a child together. Common-law spouses generally have fewer legal rights than married spouses upon break-up. For example, common-law spouses do not have an equal right to live in the family home, nor do they have an automatic right to equalise their net family property acquired during their relationship.
If a common-law spouse has children from a former relationship who have been living with the couple, the other spouse may be considered a parent to that child as well for the purposes of child support. Any parent can apply for custody of or access to a child. Unmarried couples will apply under the Children's Law Reform Act (CLRA), which applies to cohabiting couples who decide to separate, those with children together who have never cohabited, and married couples who have decided to separate but are not seeking a divorce.
In the event that the laws result in an unfair division, a partner can make a claim to the courts citing "unjust enrichment". If unjust enrichment is successfully proven, the party that benefited will be ordered to make reasonable restitution of the property, services, or benefits that they unfairly received.
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Frequently asked questions
A common-law marriage is a valid and legal way for a couple to marry without a formal ceremony or marriage license. In the US, common-law marriages are incredibly rare and only eight states still allow them: Colorado, The District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Texas.
The process of obtaining a divorce for a common-law marriage is the same as for a traditional marriage. The biggest difference is that you will need to prove that you and your partner were married in the eyes of the law.
Proving a common-law marriage can be tricky as there are no official documents. However, a qualified family law attorney can help build evidence for you. For example, if you and your partner have signed a mortgage or another legal document together, this could be used as evidence that you present as a married couple.
If you meet the legal criteria for a common-law marriage in a state that recognizes it, your marriage will still be valid if you move to a state that doesn't recognize common-law marriages.
If you have a common-law marriage, you will need to file for a divorce in court to officially end the marriage. This is the only way to exercise your full rights and avoid charges of bigamy if you wish to remarry.
