Gavin Howe
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married live together and agree to consider themselves married. Common-law marriages are not recognized in all jurisdictions, and the rights conferred to common-law spouses vary depending on the location. For example, in England and Wales, the term common-law marriage is used to refer to unmarried, cohabiting heterosexual couples, but this is merely a social usage that does not confer any legal rights or obligations. On the other hand, in the United States, common-law marriages are recognized in a small number of states, and these marriages confer economic and legal benefits similar to those of licensed marriages, such as tax breaks and inheritance rights.
Characteristics of common-law partners and their rights
| Characteristics | Values |
|---|---|
| Common-law marriage recognition | Only 15 states and the District of Columbia recognize common-law marriages. |
| Common-law marriage definition | A marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. |
| Common-law marriage requirements | The couple must live together in a state that recognizes common-law marriages, live together for a consistent period, introduce themselves as a married couple, maintain joint finances, and neither partner can be married to anyone else. |
| Common-law marriage rights | Tax benefits, inheritance rights, use of a medical power of attorney, and exemption from the gift tax for gifts to each other. |
| Common-law marriage dissolution | Common-law marriages cannot be dissolved through a common-law divorce. A traditional divorce is required, which can be tricky as showing a couple's marital intention often comes down to one partner's word against the other. |
| Non-recognition of common-law marriage | In England, Wales, and Northern Ireland, and Ireland, there is little to no grounding in the law for the concept of a common-law marriage. |
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What You'll Learn
Inheritance rights
In some provinces and territories, if a common-law partner dies without a will, the surviving partner will be entitled to inherit in the same manner as a surviving legally married spouse. However, without a marriage certificate, a common-law partner outside of these regions generally has no inheritance rights if their partner passes away without a will. In such cases, the estate will typically be distributed to the deceased's children, parents, or siblings, according to intestacy laws.
To ensure that a common-law partner receives an inheritance, it is important to create a will that specifies beneficiaries and designates how assets will be distributed. Additionally, cohabitation agreements can be put in place to specify property or support that will be received from a partner's estate. These agreements can help protect an inheritance by ensuring that it is listed as separate from any shared assets.
In Ontario, common-law spouses do not have identical inheritance rights to married spouses. However, after 30 years, a common-law spouse is entitled to support, which is calculated based on factors such as financial need, health, and age.
In the UK, under the Inheritance (Provision for Family and Dependants) Act 1975, a surviving common-law partner may be able to make a claim from the deceased's estate. However, litigation can be stressful and expensive. The Law Commission has recommended that certain unmarried partners who have lived together for a specified period should have the right to inherit under intestacy rules, but these recommendations have not been implemented.
Overall, it is important for common-law partners to understand their rights and take the necessary steps, such as creating a will or cohabitation agreement, to protect their interests in the event of their partner's death.
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Tax benefits
In Canada, common-law partners are treated the same as married couples for income tax purposes. Common-law partners have access to certain tax credits and benefits unavailable to singles, but they may also lose access to some benefits they received when filing as a single person.
If you are in a common-law relationship, you must file as such on your income tax return. You must each file your own tax return with the Canada Revenue Agency (CRA) and indicate your marital status and your partner's name, social insurance number, and net income. The CRA combines the income of both partners to determine eligibility for certain tax credits and benefit amounts.
- Income splitting: Income can be redistributed between partners to take advantage of lower tax brackets, reducing the overall tax burden for the household.
- Combined deductions and credits: Tax savings can be maximised by combining or transferring credits like spousal amount, medical expenses, and charitable donations.
- Canada Child Benefit (CCB): Benefits can be increased based on combined income, especially if one spouse has low or no income.
- Goods and services tax/harmonized sales tax (GST/HST) credit: Potential payments can be increased based on combined family income.
- Spousal tax credit: If your partner's net income is less than your personal basic amount (tax-free income), you may be eligible for a spousal credit.
- Enhanced pension benefits: Common-law partners who pool their pension income can benefit from increased benefits, as pension income splitting can reduce taxes paid on the pension amount.
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Medical power of attorney
For unmarried couples, the lack of certain marital rights can significantly impact them, especially if their partner becomes seriously ill or incapacitated. Unmarried partners do not usually have the right to handle medical or financial decisions for each other. Therefore, it is crucial to plan ahead and prepare the relevant documents to ensure that critical decisions can be made by your partner or a trusted person.
A Medical Power of Attorney (MPOA) is a type of "advance directive" that names a trusted person (an agent) to make healthcare decisions on your behalf when you cannot. The MPOA is a simple way to ensure that your wishes are carried out by your agent, who must agree that your medical choices are in your best interest. The agent cannot make decisions that contradict your terms and must honour your wishes, even if you are unable to make medical decisions.
The MPOA comes into effect when a doctor states in writing that you cannot make medical decisions for yourself. It lasts until the expiration date listed on the document, if any. The agent can make most medical decisions, such as agreeing to or refusing medical procedures, but they must talk to your doctors before making any decisions and your wishes must be honoured.
To obtain a MPOA, you do not usually need to consult a lawyer. However, it is important to note that the requirements vary from state to state. For example, you may need to sign the document in the presence of a notary and, in some states, witnesses may also be required.
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Common-law marriage recognition
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married live together and agree to consider themselves married. Common-law marriages are not recognised in all jurisdictions, and the rights conferred to common-law spouses differ depending on the state or country.
In the United States, only 15 states and the District of Columbia recognise common-law marriages. The requirements for a common-law marriage vary from state to state, but generally include living together in a state that recognises common-law marriage, cohabiting for a consistent period, introducing themselves as a married couple, maintaining joint finances, and neither partner being married to anyone else. Some states, such as Texas and Utah, have set time limits on claims for common-law marriage. If a couple in a common-law marriage moves to a new state, their common-law marriage must be recognised even if the new state does not ordinarily allow them.
In England and Wales, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples. However, this term does not confer any legal rights or obligations on the couple. Unmarried partners may be recognised for certain purposes, such as means-tested benefits, but in most areas of the law, cohabitants have no special rights. Similarly, Northern Ireland and Ireland do not recognise common-law marriage, although Ireland previously had a Civil Partnership and Certain Rights and Obligations of Cohabitants Act that granted some rights to unmarried cohabitants.
In Norway, couples who live together and have children together are given some marriage-like rights, including inheritance rights. This change in Norwegian inheritance laws recognises the widespread acceptance of cohabitation in the country.
It is important to note that the recognition of common-law marriage varies by jurisdiction, and individuals should consult an experienced family law attorney to understand their specific rights and requirements.
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Cohabiting rights
The term "common-law marriage" is often used to describe cohabiting couples, but it does not confer the same rights and obligations as a legally recognised marriage or civil partnership. In England, Wales, Northern Ireland, and Kuwait, the term "common-law marriage" holds no legal standing and does not grant cohabiting couples any special rights or protections.
Cohabiting couples have fewer rights compared to married couples or those in a civil partnership, particularly regarding finances, property, and children. Unmarried cohabitants do not have automatic rights to financial support, property claims, or inheritance in the absence of a will. However, certain jurisdictions, like Ireland, previously had the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which granted some rights to unmarried cohabitants. Additionally, in the United States, 15 states and the District of Columbia recognise common-law marriages, each with its own unique requirements.
To protect their rights, cohabiting couples can establish a cohabitation agreement, outlining how they will manage their financial affairs, children, and other relevant matters during and after their relationship. This agreement provides certainty and helps avoid costly disputes, especially if the relationship ends.
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Frequently asked questions
A common-law marriage is a marriage that occurs when two people who are legally capable of being married live together and agree to consider themselves married, without the prerequisites of a marriage license or ceremony.
Common-law partners are exempt from the gift tax for gifts to each other. They enjoy unlimited marital exemptions for their estate up to the federal estate tax limit and can claim deductions for mortgage interest if they co-own a house or have children. Common-law partners can also inherit each other's property with a valid will.
Common-law marriage is not recognized nationwide in the US or the UK. Only 15 states and the District of Columbia recognize common-law marriage in the US, and the laws and requirements vary from state to state. In the UK, Northern Ireland, England, and Wales do not have a strong basis for recognizing common-law marriage. However, Ireland did have the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which granted some rights to unmarried cohabitants.
To be considered a common-law marriage, the couple must live together in a state that recognizes common-law marriage and meet the requirements for a common-law marriage in that state. These requirements may include cohabiting for a consistent period, such as seven or ten years, introducing themselves as a married couple, and maintaining joint finances. If there is a dispute, a judge may decide if a couple is in a common-law marriage based on the specific circumstances and the standards established in the state's statutes and case law.
