Kara Sears
The definition of a common-law partner varies depending on the jurisdiction. In Ontario, Canada, common-law partners are those who live together in a conjugal relationship without being legally married, typically recognized after cohabiting for at least three years or if they have a child together and maintain a relationship of some permanence. In the United States, common-law marriage requirements differ by state, and some states do not recognize it at all. Common-law marriages are generally defined by factors such as the length of cohabitation, legal capacity to marry, intent to be married, and holding themselves out as a married couple. Common-law partners may have different legal rights and obligations compared to legally married spouses, especially regarding property division and financial matters upon separation.
Characteristics of a common-law partner:
| Characteristics | Values |
|---|---|
| Legal recognition | Common-law marriage is legally recognised in some states and countries, but the specific requirements vary. For example, in Ontario, Canada, it is recognised after cohabiting for at least three years or one year if they have a child together. |
| Property rights | Common-law partners generally do not have the same property division rights as married spouses. Property is typically owned by the individual with the legal title, and division upon separation is based on principles of fairness and contribution. |
| Financial considerations | Common-law spouses may have different tax implications, social security benefits, and insurance policies compared to legally married couples. They may also have limited rights to each other's financial accounts and estate planning. |
| Spousal support | Both married and common-law spouses have similar rights to spousal support upon separation, governed by the Divorce Act and the Family Law Act. Factors include the length of the relationship, roles, and financial needs. |
| Child custody | Custody and child support are governed by the same principles for both married and common-law spouses, focusing on the best interests of the child. |
| Legal capacity | Both partners must have the legal capacity to marry, be at least 18 years old, and not already be married to other people. |
| Intent | Both partners must intend to be married and hold themselves out as a married couple to their community. |
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What You'll Learn
Requirements
The requirements for common-law partnerships vary depending on the region. Here are some general requirements and how they differ in specific places:
General Requirements
- Cohabitation: Common law partnerships often require partners to live together for a specific period, such as three years, although this duration can vary by jurisdiction. In some places, having a child together reduces the required cohabitation period to one year.
- Conjugal Relationship: In some jurisdictions, a "conjugal relationship" is more than just a sexual relationship. It involves sharing a home, finances, friend groups, and an emotional connection, in addition to sexual intimacy.
- Legal Capacity to Marry: Both partners must generally be at least 18 years old, of sound mind, and not already married to other people.
- Intent to be Married: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. This can include referring to each other as "spouse" or "partner," taking the same last name, etc.
Specific Regional Requirements
- Ontario, Canada: In Ontario, common law partners are recognized after cohabiting for at least three years or if they have a child together and maintain a relationship of some permanence (generally for one year).
- United States: The requirements for common-law marriage vary by state. For example, some states like Colorado, Iowa, Kansas, and Montana recognize common-law marriages with specific conditions. Other states, like Pennsylvania, retroactively recognize same-sex common-law marriages before a certain date.
- United Kingdom: There is no definitive law surrounding common-law marriages in England and Wales, but cohabiting partners may have similar rights to married spouses in certain areas.
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Rights
The term "common-law marriage" is often used to describe cohabiting couples, whether or not registered, but these relationships are not legally recognised as marriages. While the term "common-law spouse" is used colloquially, legally, there is no recognition of a "common-law partner/spouse". In England and Wales, the term has been used to refer to unmarried, cohabiting heterosexual couples, but it does not confer any of the rights enjoyed by married spouses or civil partners.
In Canada, some provinces may extend to common-law couples many of the rights and responsibilities of a marriage, but they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses for certain purposes, such as taxes and financial claims. However, the rights of common-law couples can vary by province and legal context. For example, in Quebec, unless you are legally married, your spouse will not be entitled to anything if you pass away. On the other hand, in Nova Scotia, a couple is considered to be in a common-law relationship if they live together in a marriage-like relationship and refer to themselves as partners or spouses.
Cohabiting couples who are not legally married do not have the same legal rights as married couples or those in a civil partnership. They are considered "unconnected individuals" by HMRC and cannot claim certain tax reliefs and entitlements. They also do not have automatic rights to inherit their partner's estate or claim their pension assets. However, a surviving partner may be able to legally claim "reasonable provision for their own maintenance" if they were financially dependent on their deceased partner.
To protect their rights and simplify legal issues in the event of a relationship breakdown or the death of a partner, cohabiting couples can create a cohabitation agreement, which is a legally binding document that outlines the rights and obligations of each partner. This can include matters such as finances, property interests, and arrangements for any children.
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Separation
When it comes to property division, common-law couples are generally not legally required to split property acquired during their relationship. Each partner is typically entitled only to what they brought into the relationship or acquired individually. In some cases, if a common-law partner has contributed extensively to the value of a shared asset, such as a home, pension, or savings account, they may be able to claim a beneficial interest in that asset. This can be demonstrated through financial contributions or by taking on household or child-rearing tasks that enabled their partner to build their business or career.
If the common-law partners have children together, both parents retain parental authority and are expected to continue making decisions in the best interests of the children. Child support is determined similarly for married and unmarried parents, with both being calculated using the Child Support Guidelines. Additionally, if a common-law partner has children from a former relationship who have been living with them, they may be considered a parent to that child for child support purposes.
Financial compensation may be possible in a common-law separation if one partner was placed at a financial disadvantage for the benefit of the other without a valid reason. It is important to consult a lawyer or notary for specific requirements and to understand the unique circumstances of each case.
In Ontario, common-law couples can sign a cohabitation agreement to set out terms in the event of a separation, including spousal support. Part 3 of the Family Law Act, which governs support, applies to common-law couples who have cohabited continuously for at least three years or have children together. This may entitle one partner to spousal support or create an obligation to pay spousal support to the other.
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Recognition
In the United States, the recognition of common-law marriage depends on the state. Some states like Colorado, Iowa, Kansas, Montana, and New Hampshire recognise common-law marriage, albeit with certain conditions. For instance, in Colorado, common-law spouses must be 18 or older and mutually agree to be considered married. In contrast, other states like Pennsylvania are retroactively determining if same-sex couples had common-law marriages before the state recognised them.
The recognition of common-law marriage is significant as it determines the legal rights and obligations of the couple, especially upon separation. Married spouses often have presumptive rights to share and divide property, while common-law partners may need to rely on principles of unjust enrichment and equitable remedies, which can be complex and require legal intervention. Additionally, recognised common-law spouses may receive tax benefits, social security benefits, and inheritance rights, further emphasising the importance of recognition in this context.
It is important to note that the recognition of common-law marriage is subject to change over time as laws and social attitudes evolve. Therefore, it is advisable to seek legal advice for specific situations to understand the current recognition and associated rights and obligations.
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Taxes
In Canada, each individual files their own tax return, regardless of their marital status. However, common-law partners are treated the same as married couples under the federal Income Tax Act. Therefore, common-law partners must indicate their status on their tax return.
There are several tax benefits to filing as a common-law partner. For example, you can combine certain expenses, such as medical expenses, and have one partner claim the total. You can also combine charitable donation credits, which can lead to significant savings. You may also be able to transfer credits, such as the Disability Tax Credit, the age credit, and pension income amounts, from your spouse's return to yours.
However, there are also some disadvantages to filing as a common-law partner. Your combined income may disqualify you from some benefits programs you were previously entitled to as a single person. For example, you may no longer be eligible for the GST/HST credit, the Canada Child Benefit, the eligible dependant credit, and the Guaranteed Income Supplement and Allowance.
It is important to note that, in the case of a separation, you and your common-law partner need to be apart for at least 90 days to be considered officially separated by the CRA. When filing a return for the year you were separated, your claim for the common-law partner amount is calculated using your partner’s net income before the date of separation.
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Frequently asked questions
A common-law partner is someone who lives with their partner in a conjugal relationship without being legally married.
A conjugal relationship is one in which two people share a home, finances, friend groups, and an emotional connection on top of having a sexual relationship.
Common-law partners do not have the same legal rights as married couples. Common-law partners do not benefit from the same property division rules as married couples. They also cannot file taxes jointly. However, they have similar rights when it comes to making a claim for spousal support, and custody and child support are governed by the same principles as married couples.
The definition of a common-law relationship varies by location. 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 or one year if they have a child together. In the US, the requirements for common-law marriage vary by state. Some states require both partners to be at least 18 years old, mentally capable of committing, and not already married.
