Keith Mack
Canada does not have the institution of common-law marriage within the meaning of the legal concept of such a marriage under the common law. However, common-law relationships are recognized for certain purposes in Canada. Common-law marriages are defined as two people living together in a conjugal relationship, without being legally married, for a period that varies by province or territory. In Ontario, common-law relationships are officially recognized when a couple has lived together for at least three years or has a child together. While common-law couples in Ontario are not required to register their relationship, having a written cohabitation agreement can be beneficial. This agreement can clarify expectations and simplify matters in the event of a separation, providing a legally recognized framework.
| Characteristics | Values |
|---|---|
| Recognition by Canadian law | Common-law relationships are recognized for certain purposes in Canada, but common-law marriage does not exist as an institution within the meaning of the legal concept of marriage under common law. |
| Recognition for immigration purposes | Canadian common-law marriages generally do not meet the criteria to qualify for dependent visa status in the U.S. |
| Definition | A common-law relationship is when two people live together in a conjugal relationship without being legally married. |
| Legal definition | Common-law relationships are de facto relationships, while marriages are de jure relationships. |
| Duration requirements | For tax purposes, a couple must have lived together for at least 12 continuous months to be considered common-law. In Ontario, common-law relationships are officially recognized when a couple has lived together for at least three years or has a child together. |
| Rights | Common-law partners do not have the same rights as married couples. In the absence of a will, most provinces do not automatically grant common-law partners the same rights and responsibilities as married couples in terms of property division, rights to spousal support, inheritance, and survivor benefits. |
| Proof | Common-law relationships must be proven through evidence of cohabitation and a conjugal relationship. |
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What You'll Learn
Common-law marriage recognition in US immigration law
In the United States, common-law marriage is recognised differently across states. Some states recognise common-law marriages and consider the parties to be married. For a common-law marriage to be valid for immigration purposes, the parties must live in the jurisdiction and meet the qualifications for common-law marriage in that jurisdiction.
USCIS (U.S. Citizenship and Immigration Services) recognises common-law marriages for naturalisation purposes if the marriage is valid and recognised by the state in which it was established. This is true even if the naturalisation application is filed in a jurisdiction that does not recognise common-law marriage.
The legal validity of a marriage, including common-law marriages, is generally determined by the law of the place where the marriage was celebrated. This is known as the "place-of-celebration rule". Under this rule, a marriage is valid for immigration purposes if it is valid under the law of the jurisdiction in which it was performed. The burden is on the applicant to establish the validity of their marriage and that they have been married for the required period of time. A marriage certificate is usually sufficient evidence that a marriage was legally performed.
USCIS does not recognise civil unions, domestic partnerships, or other such relationships not recognised as marriages in the place of celebration. Furthermore, USCIS does not recognise relationships entered into for the purpose of evading immigration laws, also known as sham marriages.
It is important to note that the definition of a common-law relationship may change depending on the context, such as immigration, estate planning, or taxes.
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Common-law marriage history
In Canada, common-law marriage is sometimes referred to as a common-law partnership or common-law relationship. It is defined as two people living together in a conjugal relationship, without being legally married, for a period that varies by province or territory.
The recognition of common-law relationships and the time required to be considered common-law partners differ across Canada. While some provinces may grant couples in marriage-like relationships many of the same rights and responsibilities as married couples, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated as married spouses for many purposes, such as taxes and financial claims.
In British Columbia and Newfoundland and Labrador, for example, couples must live together in a conjugal relationship for two years before they have the same rights and responsibilities as married couples. In Ontario and Manitoba, the period is three years, or one year with a child. Under the Civil Code in Quebec, common-law relationships are referred to as de facto unions, and spouses in such unions have the same rights and responsibilities as married couples regardless of the number of years they have lived together.
The history of common-law marriage in Canada can be traced back to the Quiet Revolution of the 1960s, when fewer people chose religious marriage and more began opting for common-law unions. In 1981, the first year that census data on common-law couples was collected, such unions accounted for 6.3% of all families in Canada. By 2016, this number had risen to 17.8%, while the number of married couples had declined from 92% in 1961 to 65.8% in 2016.
In summary, the recognition of common-law marriage in Canada varies across provinces and territories, with different requirements and rights granted to common-law couples in each jurisdiction. The history of common-law marriage in Canada reflects a shift away from religious marriages towards common-law unions, with a significant increase in the number of common-law couples over the past few decades.
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Common-law marriage in Quebec
In Quebec, one out of three couples live together without being married. However, common-law marriages are not officially recognised by law in the province. This means that, in the absence of a will, common-law partners are not automatically granted the same rights and responsibilities as married couples in terms of property division, rights to spousal support, inheritance, and survivor benefits.
In Quebec, there are three different ways for couples to unite: common law, civil union, and marriage (religious or civil). Unlike marriage, common-law spouses are not subject to any obligation or right under the Civil Code of Quebec. This means that, in the event of a separation, no formality is applied. However, if each person has debts or property of their own, it will remain theirs, and if the couple has common property or debt, it will be shared.
In Canada, a common-law partnership is legally considered a de facto relationship, which means that each case is considered on an individual basis and will be established based on the facts of that specific relationship. Legally speaking, living common-law means sharing a home with a person who is not your legal spouse but with whom you have a conjugal relationship. For federal tax purposes, 'living common-law' refers to couples who have either been living together for 12 continuous months or who share a child by birth or adoption.
To summarise, common-law marriages in Quebec are not legally recognised, and common-law spouses are not entitled to the same rights and protections as married couples. However, common-law couples can still acquire legal protections by creating a will or consulting a notary to put a legal framework in place for their specific situation.
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Common-law marriage in Ontario
In Ontario, a common-law relationship is acknowledged as a legitimate partnership between two individuals of any gender. Common-law relationships are characterized by partners living together in a marriage-like relationship without a formal ceremony. However, it is important to distinguish between common-law unions and formal marriages.
The definition of a common-law relationship in Ontario differs from that of a married couple. A married couple's union is a de jure relationship, which is clearly defined and supported by marriage licenses, ceremonies, and certificates. On the other hand, a common-law relationship is a de facto relationship, which means that each case is considered on an individual basis and is established based on the specific facts of the relationship.
To be considered a common-law couple in Ontario, partners must meet one of two requirements: they must have cohabited in a conjugal relationship for three years, or if they have a child together, they must have lived together for at least one year in a "relationship of some permanence." A conjugal relationship refers to a long-term relationship where the couple is financially, socially, emotionally, and physically dependent on each other, sharing household and related responsibilities, and having made a serious commitment to one another.
While common-law partners in Ontario have many of the same rights and obligations as married couples, there are some key differences. Common-law partners do not have the same rights as legally married spouses under Ontario family and estate law. For example, upon separation, common-law partners must actively establish their claim to shared property, whereas married couples typically divide assets equally. Additionally, common-law partners do not have automatic inheritance rights and must take legal steps to protect their interests in case of their partner's death or incapacity.
It is worth noting that the popularity of common-law relationships in Canada is on the rise, with 23% of Canadian couples considered common-law. Ontario has the lowest proportion of common-law couples among the provinces, at 16%.
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Common-law marriage vs. marriage
In Canada, a common-law partnership is a de facto relationship, which means that each case is considered on an individual basis and is established based on the facts of that specific relationship. Marriage, on the other hand, is a de jure relationship, which is more clearly defined by Canadian law. Common-law partnerships are characterised by partners living together in a marriage-like relationship without a formal ceremony or legal recognition.
A common-law partnership in Canada is defined as two people living together in a conjugal relationship, without being legally married, for a period that varies by province or territory. A conjugal relationship is a long-term relationship where individuals are financially, socially, emotionally, and physically dependent on each other, sharing household and related responsibilities, and having made a serious commitment to one another. For tax purposes, a couple must have lived together for at least 12 continuous months to be considered a common-law relationship.
Marriage, on the other hand, is a formal legal union recognised across all jurisdictions in Canada. It is a lawful union of two people to the exclusion of all others and is typically formalised through a marriage license, a ceremony, an officiant, witnesses, and a marriage certificate. The specifics of the process may differ from province to province, but generally, marriage grants spouses a wide range of legal rights and obligations concerning property, inheritance, and taxes.
One key difference between common-law partnerships and marriage in Canada is the recognition and protection offered by the law. Common-law relationships are not officially recognised by laws, while marriages are legally recognised and supported by marriage licenses, ceremonies, and certificates. This means that ending a common-law partnership can be more complicated than a divorce, as issues such as division of property and inheritance rights are not clearly defined by law, as they are in marriage.
Additionally, common-law partners may not automatically be granted the same rights and responsibilities as married couples in terms of property division, spousal support, inheritance, and survivor benefits, especially in the absence of a will. In contrast, married couples typically enjoy a wide range of legal rights and protections, including those related to property, inheritance, and taxes.
It is important to note that the recognition of common-law relationships and the time required to be considered common-law partners may vary across different provinces and territories in Canada. Similarly, the requirements and recognition of common-law marriages also vary in different states in the United States.
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Frequently asked questions
A common-law marriage in Canada is a legally recognised de facto relationship, which means that each case is considered on an individual basis and is established based on the facts of that specific relationship. Common-law marriages are characterised by partners living together in a marriage-like relationship without a formal ceremony.
In Canada, you are in a common-law marriage if you are living in a conjugal relationship with a person who is not your married spouse. The time required to be considered common-law partners varies across Canada, but it is typically recognised when a couple has lived together for at least three years or has a child together. For tax purposes, you must have lived together for one year.
The legal rights of common-law partners in Canada vary depending on the province or territory. In most provinces, common-law partners do not automatically have the same rights and responsibilities as married couples in terms of property division, rights to spousal support, inheritance, and survivor benefits. However, in some provinces, common-law partners may be treated the same as married spouses for certain purposes such as taxes and financial claims.
