Cecily Zamora
In Canada, common law refers to a person living with someone they are not legally married to but are in a conjugal relationship with. 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. Common-law couples have some of the same rights as legally married couples, but these rights are not always the same and are not as well-defined. For example, a common-law spouse is not automatically entitled to half ownership of the home when the relationship breaks down. It is important to consult a lawyer to learn your rights in a common-law relationship.
| Characteristics | Values |
|---|---|
| Cohabitation period | 1-3 years of continuous cohabitation or if the couple has a child together |
| Provincial laws | Common law status varies by province and legal context |
| Inheritance | Common-law partners may not automatically inherit, depending on provincial laws |
| Tax purposes | "Living common-law" refers to couples who have lived together for 12 continuous months or share a child |
| Quebec | In Quebec, common law relationships are referred to as de facto unions |
| Quebec inheritance | In Quebec, unless legally married, a spouse is entitled to nothing if their partner passes away |
| Ontario involuntary separation | Considered common law if the partner is away for school, work, health reasons, or is incarcerated |
| Ontario cohabitation agreement | Common-law couples can establish rights and responsibilities through a domestic contract |
| Age requirement | Both partners must be 18 years or older |
| Same-sex couples | Applies to couples of the same or different genders |
| Evidence of relationship | Proof of cohabitation, duration of the relationship, essential life documents, testimonials from friends and family, messages, calls, pictures |
| Child support | A common law spouse may be required to pay child support if they "stood in place of the parent" |
| Spousal support | Requests for spousal support are sometimes made following the breakdown of common law relationships |
| Property division | The Family Law Act does not apply to common law relationships unless the couple agrees |
| BC financial obligations | In BC, couples automatically take on financial obligations associated with marriage after 2 years of cohabitation |
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What You'll Learn
Common-law inheritance rights
Inheritance laws are statutes and regulations that determine how individuals receive assets from the estate of a deceased family member. In the US, 38 out of 50 states are governed by common law policies. In three states, Alaska, Kentucky, and Tennessee, inheritance is governed by an elective community property system.
In common-law states, ownership is determined by whoever's name is on the title of the property or by whoever's income was used to purchase it. A spouse is not automatically entitled to half of the assets acquired throughout the marriage. However, many states will still give the surviving spouse the right to claim a third or even half of the deceased’s estate, regardless of the terms of the will. Common-law inheritance rights also depend on the legal definitions of the term "spouse". In every region of Canada except for British Columbia, Manitoba, Saskatchewan, and Northwest Territories, "spouse" is defined as someone you are married to. Without a marriage certificate proving you are married, a common-law partner outside of those regions has no inheritance rights if their partner passes away without a will.
In the context of inheritance, common law typically pertains to the spouse/partner of the deceased individual. While there are fewer rules regarding children, it is common for them to be able to receive a share of a decedent's property. Most states do have laws to protect against accidental disinheritance, should a will predate the birth of a child and fail to be revised before the deceased's death.
In Ontario, two separate acts, the Ontario Family Law Act (FLA) and the Ontario Succession Law Reform Act (SLRA), set out the legislative structure to protect the inheritance rights of legally married surviving spouses. Under the SLRA, the amount that a surviving spouse is entitled to receive depends on whether the deceased spouse is survived by children. If there are no children or grandchildren, a surviving spouse is entitled to receive all personal and real estate property of the deceased.
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Cohabitation agreements
A cohabitation agreement is a legal agreement between two people who live together and are in a relationship, whether they are heterosexual or homosexual. It is a way to formalize arrangements between unmarried couples on matters not covered by the law. It is especially useful when one spouse stays home to care for the children and is financially dependent on the other.
The agreement can be made to reflect a couple's unique financial relationship. It can specify whether each party is responsible for their own financial support and has rights to their own property, or whether they choose to be financially interdependent. It can also address pertinent financial details relating to children, career, retirement, purchases and savings, support, rights to inherit property, and an acknowledgment of dependent children.
The agreement also allows the individuals to determine in advance who will keep specific assets and what will happen to jointly purchased assets if they separate. It can provide for the payment of alimony or an increase in child support. It can also clarify the division of property and what happens if spouses contribute to each other's property.
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Common-law relationship requirements
The requirements for a common-law relationship vary depending on the province and legal context. In Canada, common law status typically refers to a couple living together who are not legally married but are in a conjugal relationship. This means that, in addition to having a sexual relationship, the couple shares a home, finances, friend groups, and an emotional connection.
Most provinces recognize common-law relationships after one to three years of continuous cohabitation. 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 British Columbia, a couple must live together in a marriage-like manner for at least two years, or less if they have a child together. In Quebec, a couple is considered common law after living together for at least two years.
It's important to note that common-law spouses are not treated the same as legally married spouses in most places in Canada. Common-law partners may not automatically inherit their partner's estate, and may need to file a claim to receive any portion of it. Creating a will is a way to ensure that your common-law partner is protected in the event of your death and will inherit according to your wishes.
Additionally, when it comes to separation, property is typically owned by the individual who holds the legal title and is distributed on that basis. However, a common-law spouse may be entitled to compensation for any contributions made to the acquisition, preservation, or maintenance of property.
To prove a common-law relationship, especially for Canadian sponsorship, it is essential to demonstrate a genuine, lasting commitment. This can be done through various forms of evidence, such as essential life documents, testimonials from friends and family, and proof of consistent contact through messages, calls, and pictures.
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Common-law relationship proof
Common-law relationships are legally recognised in Canada, though the specific definition varies by province and legal context. Typically, common-law status is granted to couples who have lived together continuously for at least 12 months, though this duration can range from one to three years depending on the province. In Quebec, for example, a couple must have lived together for at least two years to be considered common-law for tax purposes.
Unlike legally married couples, common-law partners are not automatically entitled to inherit their partner's estate or assets upon their death. To ensure your common-law partner is protected, it is recommended to create a will naming them as a beneficiary.
To prove a common-law relationship, various forms of evidence can be provided to demonstrate a genuine, lasting commitment:
- Shared ownership of residential property
- Joint leases or rental agreements
- Bills for shared utility accounts (gas, electricity, telephone, etc.)
- Important documents for both partners showing the same address (driver's licenses, insurance policies, identification documents, etc.)
- Employment or insurance benefits that recognise both partners as each other's common-law partners
- Testimonials from friends and family acknowledging the relationship
- Proof of consistent contact through messages, calls, and pictures together
In the context of Canadian sponsorship, it is essential to prove the authenticity of your common-law relationship. This means demonstrating that your connection is more than just convenient and is not primarily for immigration purposes. By providing solid proof of your relationship, you meet the legal requirements and build trust with immigration officials.
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Common-law rights
In Canada, common law refers to a person living with someone they are not legally married to but are in a conjugal relationship with. 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 Quebec, a couple is considered common law after living together continuously for at least two years.
In Ontario, a couple is considered common law if they cohabit and establish a conjugal relationship. An involuntary separation, such as one partner being away for work or incarcerated, does not nullify common-law status. Common-law couples in Ontario can establish or change their rights and responsibilities through a domestic contract, such as a Cohabitation Agreement. Without such an agreement, the government decides how assets are divided.
In the context of immigration, common-law relationships must be proven to be authentic and genuine, with evidence of a real bond. This can include proof of cohabitation, consistent contact, and testimonials from friends and family.
In other parts of the world, common law has different meanings. In the UK, for example, common law refers to the authority of the Supreme Court to overrule and unify criminal law decisions of lower courts. In Australia, common law courts have the power to protect human rights principles, except where legislation specifically overrides this power. In the US, common law refers to the law of a particular state, such as New York or Delaware, which is chosen by the parties in a contract.
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Frequently asked questions
A common-law relationship is one in which the couple is not legally married but cohabits and has a conjugal relationship. The definition of a spouse in common law also includes a marriage that is actually or potentially polygamous if it was celebrated in a jurisdiction that recognizes it as valid.
To be considered legally common law, you and your partner must be 18 years or older, and have lived together for at least 12 consecutive months. In some places, the time period is between 1 to 3 years, or 2 years if in BC.
Common-law couples have some of the same rights as couples who are legally married. For example, in BC, couples in a common-law relationship automatically take on the financial obligations associated with marriage after two years. Common-law couples can also enter into a contract at any time during their cohabitation to outline their rights and responsibilities.
