Kara Sears
In Canada, common-law partners are defined as two people who have been continuously living together in a conjugal relationship for at least 12 months. This definition includes any period of separation that is less than 90 days due to a breakdown in the relationship. If the couple has a child together by birth or adoption, they are only required to have lived together for one year. Common-law partners do not have the same rights and obligations as married spouses, and it is important to understand the distinctions between the two. For example, common-law partners cannot file joint income tax returns, and there is no net family property calculation or equalization payment in the event of a separation. However, there are still remedies available at common law for cohabiting spouses, such as the constructive trust resulting from an unjust enrichment.
| Characteristics | Values |
|---|---|
| Definition of common law partners | Two people are considered common law partners if they have been continuously living together in a conjugal relationship for at least 12 months. |
| Proof of common-law relationship | Shared ownership of residential property, joint leases or rental agreements, bills for shared utility accounts, important documents showing the same address (e.g. driver's licenses, insurance policies, identification documents) |
| Tax implications | Common-law partners must file their individual taxes as common-law and cannot file joint income tax returns. Family incomes are combined to calculate income-tested benefits. |
| Property ownership | In a common-law relationship, property is typically owned by the individual who holds the legal title to it and is distributed on that basis. There is no net family property calculation or equalization payment in common-law separations. |
| Rights and obligations | Common-law partners do not have the same rights and obligations as married spouses. There are remedies available at common law for cohabitating spouses, such as a constructive trust resulting from unjust enrichment. |
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What You'll Learn
Common-law vs married: rights and obligations
The term "common-law marriage" is often used to describe cohabitation or other legally formalized relationships. However, it refers to a marriage that occurs when two people capable of entering into a legal marriage intend to be married, live together, and hold themselves out as a married couple. Common-law marriages are not recognized in all jurisdictions, and the requirements vary among those that do.
In the context of common-law marriage, spouses typically have the same inheritance rights as formally married couples. Additionally, they may qualify for federal benefits, such as spousal retirement benefits. However, it is important to note that common-law spouses do not always have the same rights and obligations as married spouses. For example, in Ontario, Canada, common-law partners do not have the same rights and obligations as married spouses under the Family Law Act.
To prove a common-law relationship, various documents can be used, including shared ownership of property, joint leases or rental agreements, joint utility bills, and important documents showing the same address, such as driver's licenses and insurance policies. These documents may be required for various purposes, such as IRCC spousal sponsorship applications or tax returns.
In terms of rights and obligations, married couples typically have a legal marriage license or certificate, and their marriage is formally recognized by the state or religious authorities. They usually enjoy specific rights and protections, such as equal division of financial gains and property rights during divorce proceedings. On the other hand, common-law couples may face challenges in proving the existence of their marriage, especially during legal matters or divorce. Common-law relationships may not confer the same legal rights and protections as a formal marriage, and the division of assets during separation is typically governed by property law rather than family law.
While each jurisdiction has its own specific regulations, here are some general rights and obligations associated with common-law marriages:
- Property Rights: In common-law marriages, property is typically owned by the individual who holds the legal title. There is no equalization payment or net family property calculation in common-law separations. However, remedies exist for cohabiting spouses, such as constructive trusts, allowing a spouse who is not on the title to gain rights to a particular asset, like the matrimonial home.
- Inheritance Rights: In the absence of a will, surviving common-law spouses are generally entitled to inherit their partner's property and assets. They may also claim a portion of the estate if they were left less than what they would receive under state law.
- Spousal Support: Common-law spouses may have spousal support obligations similar to traditionally married couples.
- Child Custody: Common-law marriages can involve child custody issues, and it is crucial to consult a lawyer familiar with common-law marriage in such cases.
- Federal Benefits: Common-law spouses may qualify for federal benefits, such as spousal retirement benefits, depending on meeting specific requirements.
In summary, while common-law marriages offer some similar rights and obligations to traditional marriages, it is essential to understand the specific regulations in your jurisdiction. Common-law spouses may need to take additional steps to protect their interests, such as creating prenuptial agreements or estate plans.
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Common-law separation: property and assets
In Ontario, Canada, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years. The definition of a conjugal relationship in Canada is one in which two people share a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship.
Unlike married couples, common-law couples are not entitled to the equalization of their family property. Each partner in a common-law relationship is entitled only to what they brought into the relationship or acquired during it. Furniture, household items, and other property belong to the person who bought them. Common-law couples do not have the right to split an increase in value of the property they brought with them to the relationship. However, if you contributed to property your spouse owns, you may have a right to part of it, and you can ask your partner to pay you back for any contributions, both financial and non-financial.
If you feel that you have contributed extensively to the value of a certain asset that belongs to your partner, such as a home, pension, or savings account, and that it is unjust for your spouse to retain the full value of that asset, you are not without recourse. You can make a claim for a constructive trust to remedy unjust enrichment. To show unjust enrichment, you must demonstrate that you and your partner were engaged in a joint family venture and that your partner is retaining a disproportionate share of the profits. A constructive trust gives the beneficiary a right to property in a particular asset, such as the matrimonial home. A court can also award a monetary remedy for unjust enrichment.
To protect your rights in the event of a common-law separation, you can sign a cohabitation agreement. This is a legal document that sets out terms for the division of property and other matters if the relationship ends. Both parties must sign the agreement in front of a witness for it to be valid. Once signed, you must follow what it says. You can negotiate changes to the agreement if they are made in writing and signed in front of a witness.
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Common-law couples: filing taxes
In Canada, common-law couples are not allowed to file joint income tax returns. Each individual must file their own tax return, indicating their marital status and the name of their partner. This means that common-law couples file taxes in the same way as married couples.
To be considered a common-law couple, you and your partner must have lived together in a conjugal relationship for at least 12 continuous months. In Canada, a "conjugal relationship" is defined as one in which two people share a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship. If a couple has a child together by birth or adoption, they only need to have been living together for one year to be considered common-law.
There are several advantages to filing taxes as a common-law couple, including income splitting, combined deductions and credits, and increased benefits. Income splitting can reduce the overall tax burden by splitting income between spouses. Couples can also combine credits and expenses, such as medical expenses and charitable donations, to maximize tax savings. If one spouse has a higher income, they can maximize deductions to reduce the amount of tax paid at a higher rate.
It is important to note that, unlike married couples, common-law couples do not have the same rights and obligations. In the case of a separation, property is typically owned by the individual who holds the legal title, and there is no equalization payment or net family property calculation in common-law situations.
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Common-law status: proof of relationship
In Canada, a "conjugal relationship" is defined as one in which two people share a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship. To be recognised as common-law partners, a couple must have been continuously living together in a conjugal relationship for at least 12 months. This duration is reduced to one year if the couple has a child together by birth or adoption.
To prove a common-law relationship, various forms of evidence can be provided. These include:
- Shared ownership of residential property
- Joint leases or rental agreements
- Bills for shared utility accounts (e.g. gas, electricity, telephone)
- Joint utility accounts
- Important documents for both partners showing the same address (e.g. driver's licenses, insurance policies, identification documents)
- Employment or insurance benefits that recognise both partners as each other's common-law partners
- Testimonials from friends and family acknowledging the relationship
- Evidence of consistent contact through messages, calls, and pictures together
It is important to note that not all of these items are required to prove a common-law relationship. Other forms of proof may also be considered.
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Common-law partners: child custody and support
In Canada, a "conjugal relationship" is defined as one in which two people share a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship. In Ontario, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years. However, if they have a child together by birth or adoption, the requirement is reduced to one year.
Common-law spouses have the same rights and obligations as married spouses when it comes to caring for children. This includes rights to custody of children and the obligation to provide financial support. If the parents cannot agree on child custody or support payments, the courts will decide based on the best interests of the children, in accordance with federal and provincial guidelines.
When it comes to property rights, common-law relationships can be more complex. In Ontario, property rights for those who are not legally married are not automatic. Each partner typically retains the property they brought into the relationship, while jointly owned property is shared. However, there may be circumstances in which a common-law spouse can claim rights to their partner's separate property, such as through a constructive trust or a claim of unjust enrichment.
To prove a common-law relationship, various documents can be provided, including shared ownership of residential property, joint leases or rental agreements, bills for shared utility accounts, and important documents showing the same address, such as driver's licenses, insurance policies, or identification documents.
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Frequently asked questions
A common-law partnership is when two people live together in a conjugal relationship for at least 12 continuous months. A "conjugal relationship" is more than just a sexual relationship. It involves sharing a home, finances, friend groups, and an emotional connection.
You must notify the CRA about your status change and file your individual taxes as common-law. Items that can be used as proof of a common-law relationship include: shared ownership of residential property, joint leases or rental agreements, bills for shared utility accounts, and important documents showing the same address (e.g. driver's licenses, insurance policies, identification documents).
There are various benefits to declaring a common-law partnership, especially in relation to taxes and property ownership. For example, you can split your eligible pension income with your partner, and contributions you make to your partner's RRSP can be deducted from your taxable income. In the case of a separation, a constructive trust allows a cohabiting spouse who is not on the title to gain a right to property in a particular asset, such as the matrimonial home.
