Cameron Miranda
In Canada, common-law marriage does not exist as a legally recognised institution, despite the term being used to describe cohabiting couples who live in a marriage-like relationship. However, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. The criteria for a common-law relationship vary across provinces, with some defining it as living together for at least two years, while others require three years or the presence of a child. To avoid being considered common-law in Canada, it is important to understand these provincial definitions and not meet the specified criteria. Additionally, creating a cohabitation agreement can help distinguish a relationship from a common-law marriage, as common-law spouses generally have fewer legal rights upon break-up.
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What You'll Learn
Understand the definition of common-law marriage
In Canada, a common-law marriage is defined as a couple living together in a marriage-like relationship without being legally married. The definition of common-law marriage differs depending on the laws applied. For example, the Canada Pension Plan recognises a couple as being in a common-law relationship after they have lived together for at least 12 months. On the other hand, the Parenting and Support Act requires two years of cohabitation before a relationship can be legally described as a common-law marriage.
The criteria for a common-law relationship also vary across different provinces in Canada. 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 have lived together for less than two years but have a child together. In Alberta, a common-law relationship is called an Adult Interdependent Relationship, which requires a formal and valid Adult Interdependent Partner agreement, or living together in a relationship of interdependence for at least three continuous years, or living together in a relationship of some permanence where there is a child of the relationship. In Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years.
In Ontario, a couple is considered to be in a common-law relationship if they have been living together in a conjugal relationship for at least three years or they have a child together and have been living together for at least one year in a relationship of some permanence. In Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses.
It is important to note that common-law marriages do not have the same legal rights as married spouses upon the breakdown of a relationship. Common-law spouses generally have fewer legal rights and are not entitled to equalisation or the division of assets. They also do not have an automatic right to live in the family home or equalise their net family property acquired during the relationship. However, common-law spouses can make a claim for constructive trusts based on unjust enrichment if they feel they have contributed extensively to an asset that belongs to the other party.
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Cohabitation agreements
In Canada, a "conjugal relationship" is more than just a sexual relationship. It involves two people sharing a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship.
A cohabitation agreement is a written contract that can be made between common-law spouses. It is similar to a prenuptial agreement, but does not require the two parties to be legally married. The purpose of a cohabitation agreement is to establish the property rights of each spouse in the event of a separation. Without such an agreement, a common-law spouse may only have the right to claim financial support upon separation.
To create a legally binding cohabitation agreement, both parties must be completely open and honest about their financial situations and sign the agreement in front of a witness. It is highly recommended that each party involved in a cohabitation agreement seeks independent legal counsel to ensure that the agreement is properly drafted in accordance with the law and that their interests are protected.
While the law does not require common-law couples to sign cohabitation agreements, it can be beneficial for several reasons. Firstly, it allows couples to discuss their expectations in the event of a breakup. Secondly, it enables them to create rights that the law does not automatically provide for, such as agreeing to split property equally or waiving financial support obligations.
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Property rights
In Canada, common-law partners do not have the same automatic rights to property as married couples. Generally, each partner keeps what they own, and common-law partners do not have an automatic right to equalize their net family property acquired during their relationship.
However, there are exceptions and nuances depending on the province. For example, in British Columbia, common-law partners have the same property rights as married couples after living together for a certain period. They share the value of all property accumulated during the relationship and the increase in the value of property brought into the relationship.
In Ontario, common-law spouses do not have an equal right to live in the family home unless they are both owners. They also do not have an automatic right to equalize their net family property. However, there are two equitable remedies that a common-law spouse may use to claim a share in property owned by the other partner: unjust enrichment and constructive trust.
To protect their rights, common-law partners can create a cohabitation agreement or a separation agreement that outlines how property will be divided in the event of a breakup. These agreements can also specify what property or support one partner would receive from the other's estate if they pass away.
It is important to note that each province in Canada has its own laws regarding common-law relationships, so it is always best to consult with a lawyer to understand your specific rights and obligations.
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Separation agreements
In Canada, a common-law relationship is when two individuals live together in a marriage-type situation without being married legally. The specific definition of a common-law relationship varies across different provinces. For example, 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, a couple is considered to be in a common-law relationship for tax purposes after living together continuously for at least two years.
Unlike a marriage, which can only be legally ended with a divorce, there is no legal process for ending a common-law relationship in Canada. To end the relationship, you typically need to separate from your partner, stop living together, and annul your cohabitation agreement, if you have one.
If you have lived together and have children together or have jointly purchased numerous assets, the process of separating can be complicated. In such cases, it is recommended to seek legal advice and sign a separation agreement. A separation agreement 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. While it is possible to write your own separation agreement, consulting a lawyer can help ensure that the agreement is clear, complete, legally binding, and fair to both parties.
It is important to note that common-law partners do not have the same legal rights and obligations toward one another upon separation as married couples. For example, common-law spouses do not have an equal right to live in or possess the family home. The home belongs to the person who purchased it and whose name is on the title or lease. Additionally, common-law spouses do not have an automatic right to equalize their net family property acquired during the relationship.
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Common-law marriage in Quebec
In Quebec, a common-law relationship is often referred to as a de facto union. To be recognised as a common-law couple for tax purposes, a couple must have lived together continuously for at least two years. This is also the criterion for federal tax purposes across Canada.
There are several important differences between common-law and married couples in Quebec. For example, in the event of a breakup, common-law spouses do not have the same rights to family assets as married couples. There is no automatic family patrimony regime for de facto spouses, and assets acquired during cohabitation are not subject to the same rules as for married couples. There is also no obligation for common-law spouses to pay alimony to their ex-partner.
Inheritance rights also differ between the two types of unions. For married couples, inheritance law is more automatic and predictable, whereas for common-law spouses, inheritance law is less automatic. In the absence of a will, the surviving common-law spouse is not automatically entitled to a share of their deceased partner's estate.
The proportion of couples living together in Quebec who are neither married nor in a civil union has increased dramatically, from eight per cent in 1981 to 42 per cent in 2021. This may be due to various reasons, such as the high cost of weddings, religious issues, or the association of marriage with traditional gender roles.
To avoid being considered common-law married in Quebec, a couple must not live together continuously for two years or more. Additionally, creating a will is essential to ensure that your estate is distributed according to your wishes in the event of your death.
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Frequently asked questions
A common-law marriage is a marriage that results from the couple's agreement to consider themselves married and cohabitation, rather than a statutorily defined process. Common-law marriages are not legally considered marriages in Canada, but some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage.
A marriage is a legally recognised union between two people. Common-law marriages are not legally recognised as marriages but may be considered a "domestic partnership", "conjugal union", or "civil union".
Common-law spouses in Canada have fewer legal rights than married spouses. For example, common-law spouses do not have an equal right to live in the family home or an automatic right to equalise their net family property.
The criteria for a common-law relationship vary across different provinces in Canada. Generally, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. To avoid being in a common-law marriage, you should not live with your partner and refrain from presenting yourselves as spouses in public.
Upon separation, each person typically keeps everything they personally own. However, a common-law spouse may use equitable remedies, such as unjust enrichment and constructive trust, to claim a share in the property owned by the other partner.
