Gavin Howe
The number of years it takes to be considered common-law varies depending on the jurisdiction and the purpose for which the determination is being made. In some places, common-law status is not recognized at all. In Canada, common-law status varies by province and legal context. Most provinces recognize common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. In the United States, most states have abolished common-law marriage by statute, but it is still recognized in a small number of states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia.
| Characteristics | Values |
|---|---|
| Common law in Ontario, Canada | 3 years of cohabitation or 1 year if the couple has a child |
| Common law in British Columbia, Canada | 2 years of cohabitation or 1 year if the couple has a child |
| Common law in Saskatchewan, Canada | 2 years of cohabitation |
| Common law in Quebec, Canada | 2 years of cohabitation |
| Common law in Manitoba, Canada | 3 years of cohabitation or 1 year if the couple has a child |
| Common law in New Brunswick, Canada | 3 years of cohabitation or 1 year if the couple has a child |
| Common law in the US | Differs by state, common-law marriage is abolished in most states. Common-law marriage can still be contracted in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. |
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What You'll Learn
Common law in Ontario, Canada
In Ontario, Canada, a common-law relationship is a legally recognised de facto union between two people who live together but are not legally married. This means that the couple must prove that they are in a common-law relationship in each individual case based on the facts.
To be considered common-law partners in Ontario, a couple must have cohabited for at least three continuous years. If the couple has a child together, either through adoption or birth, they only need to have lived together for a minimum of one year to be considered common-law in Ontario.
Common-law relationships in Ontario are becoming increasingly common, and it is important to understand the rights and responsibilities that come with them. Common-law partners are covered by many of the same laws and protections afforded to married couples. For example, common-law partners are entitled to share property rights and benefits, such as pensions and insurance, and are also entitled to spousal support if the relationship ends. However, there are some differences in how assets and property are divided upon the dissolution of a common-law relationship. Unlike married couples, common-law partners do not need a formal divorce to make their separation official, and they may not have the same inheritance rights as married couples.
It is important to note that the definition of common-law in Ontario may differ in certain contexts, such as estate planning, immigration, and taxes. For federal tax purposes, 'living common-law' in Canada refers to couples who have either been living together for 12 continuous months or who share a child by birth or adoption.
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Common law in British Columbia, Canada
In British Columbia, Canada, common law refers to a legal relationship where two people live together in a marriage-like partnership for at least two years without being legally married. The term "marriage-like relationship" is used instead of "common law" in British Columbia. This means that the couple has lived together for at least two continuous years in a marriage-like relationship, or if they've lived together for less than two years but have a child together.
Under BC's Family Law Act of 2013, couples who have been living together for two years share the same legal rights as married couples, including a 50/50 split of debts and assets, excluding pre-relationship property, inheritances, and gifts. This Act governs property division and spousal support. Once a couple is considered "spouses", everything accumulated since the day they first began living together as married-like is equally divided upon separation.
The law treats common-law relationships differently depending on the context, such as federal law vs. BC law or the laws of other provinces in Canada vs. BC law. For example, in Quebec, common-law relationships are referred to as de facto unions, and a couple is considered common law for tax purposes after living together for at least two years. In Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years, or one year if they have a child together.
In British Columbia, common law spouses are often treated the same as married spouses when it comes to inheritance rights. A common-law spouse can inherit all or part of their deceased partner's estate if they die without a will, and they are counted among the next of kin. However, the division of property may not always match up with what the couple had hoped for, and it is recommended to have a will to ensure that distribution preferences are accounted for.
It is important to note that the definition of "common law" can vary by province and legal context, and it is always a good idea to seek legal advice when navigating common-law relationships and separations.
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Common law in the US
In the United States, common-law marriage is a marriage that results from an agreement between two parties to be considered married, cohabitation, and holding themselves out in public as a married couple, rather than through a statutorily defined process. Common-law marriage is not recognized nationwide, and most states have abolished it by statute. However, it is still valid in some states, including Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, and the District of Columbia. These states consider couples in a common-law marriage to be legally married for all purposes.
The requirements for a common-law marriage vary, but generally, couples must be eligible to marry and cohabitate in a state that recognizes such marriages, intend to be married, and publicly present themselves as a married couple. There is no specific time requirement for common-law marriage, and it is a myth that a couple becomes common-law married after living together for seven years. The length of time required to establish a common-law marriage can vary depending on the state and the specific circumstances of the couple.
It is important to note that the term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. These relationships may be legally defined as "unmarried spouses" and may have certain rights and responsibilities similar to married spouses, but they are not legally recognized as marriages.
In Canada, common-law relationships are recognized in some provinces, and the definition and requirements can vary by province. For example, in Ontario, a couple is considered to be in a common-law relationship after living together continuously for at least three years or one year if they have a child together. Other provinces, such as British Columbia and Manitoba, have similar definitions with slight variations.
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Common law in the UK
In the UK, common-law marriage is a myth. There is no legal recognition of common-law marriage, and cohabiting couples are not given the same rights and protections as married or civil-partnered couples. This means that, in the event of a separation or the death of one partner, the surviving or remaining partner may not have any legal claim to their shared property or assets.
Cohabiting couples are considered "unconnected individuals" by HMRC and are unable to claim certain tax reliefs and entitlements, such as Marriage Allowance. However, they can claim certain means-tested benefits, such as Universal Credit, on behalf of the 'family'. They can also claim bereavement benefits if they have dependent children.
While common-law marriage is not recognised in the UK, there are steps that unmarried couples can take to protect themselves and their assets. One way to do this is by drawing up a cohabitation agreement, also known as a living together agreement, which outlines the rights and obligations of each partner towards each other in the event of separation or death. This can include finances, property, and what will happen to any children. A cohabitation agreement can provide protections similar to marriage, such as providing equal shares of assets or access to pensions.
Another way to safeguard assets is by making a will. This ensures that assets are distributed according to one's wishes in the event of their death. A surviving partner may not automatically inherit their partner's assets if they die without leaving a will, so making a will can provide peace of mind.
In Scotland, the laws differ slightly from the rest of the UK. Since 2006, ownership of household goods bought during the time a couple lived together will be ruled jointly owned, and their share split equally. Before this, Scotland was the only European jurisdiction never to have totally abolished the old-style common-law marriage. For this law to apply, the couple had to have lived together continuously for more than 20 days.
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Common law in other countries
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries, including Egypt and the Francophone countries of the Maghreb and West Africa. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
Approximately 40 countries and territories use common law, including the United States and Canada, and roughly 60 more use it as part of a mixed legal system. Common law originated in England following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies.
In Canada, common law is defined differently in each province. For example, in Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years or one year if they have a child together. In Quebec, common law relationships are often referred to as de facto unions, and a couple is considered common law for tax purposes after living together continuously for at least two years. In Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years.
Scotland has a unique legal system that combines elements of uncodified civil law dating back to the Corpus Juris Civilis with its own common law that predates the Treaty of Union with England in 1707. Historically, Scottish common law differed in that the use of precedent was subject to the courts seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law.
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Frequently asked questions
For federal tax purposes, Citizenship and Immigration Canada considers you common law after living together for one year. For provincial family law purposes, it's three years. If the couple has a child together, the time period is reduced to one year.
In British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years, or if they’ve lived together for less than two years but have a child together.
In Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years.
In Quebec, you are considered common law for tax purposes after living together continuously for at least two years.
Common-law marriage is not recognized in most states in the US. However, it is still recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Texas, Utah, Oklahoma, New Hampshire (for inheritance purposes only), and the District of Columbia. There is no time requirement for common-law marriage in these states, but couples must intend to be married and hold themselves out in public as a married couple.
