Keith Mack
Common-law relationships are widely understood as two people living together in a marriage-like relationship without being legally married. While common-law spouses are considered part of a family unit, their legal rights differ from those of married couples, especially in the event of a separation or death. This is because common law originates from customs and judicial precedent rather than marital statutes, and each province in Canada has its own definition of what constitutes a common-law relationship.
| Characteristics | Values |
|---|---|
| Definition | Two people living together in a marriage-like relationship but who are not legally married |
| Legal definition | The BC Family Law Act does not have a legal definition for the term "common-law". Each law has its own definition for what qualifies as a common-law relationship. |
| Spouse | A spouse is someone who is legally married, or lives with their partner in a common-law relationship (for three or more years or if they have a child together) |
| Legal rights | Common-law spouses don't inherit any of their spouse's property by default. They are not entitled to an equalization of family property. |
| Separation | Common-law couples have no presumptive right of property sharing upon relationship breakdown. |
| Spousal support | Common-law couples have relatively similar rights when it comes to making a claim for spousal support. |
| Child custody | Custody and child support for both married and common-law spouses are governed by the same principles. |
| Cohabitation agreement | A cohabitation agreement allows a couple to contract out of the Family Law Act statutory requirements for property division and spousal support. |
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What You'll Learn
Common-law marriage definition
The definition of a common-law marriage varies depending on the jurisdiction. In some places, it is a legally recognised marriage between two people who have not purchased a marriage license or participated in a legally recognised ceremony. In other words, it is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process.
In the United States, only 15 states and the District of Columbia recognise common-law marriages. Each state has its own requirements, which may include living together for a consistent period (such as seven or ten years), introducing themselves as a married couple to friends, neighbours, and coworkers, and maintaining joint finances. Common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple, including Social Security.
In Canada, some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, but they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for some purposes, such as taxes and financial claims. In Ontario, a common-law relationship is typically recognised after cohabiting for at least three years or if the couple has a child together and maintains a relationship of some permanence.
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. While common-law spouses may share some rights and obligations with married couples, important legal differences exist, especially upon separation.
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Common-law spousal rights
The term "common-law spouse" is widely used to refer to two people living together in a marriage-like relationship but who are not legally married. While common-law spouses are generally considered family, they do not have the same legal rights as legally married spouses. The specific rights and obligations of common-law spouses can vary depending on the jurisdiction, and it is important to consult a legal professional for specific advice.
In Ontario, Canada, for example, family law distinguishes between married spouses and common-law partners, and each relationship has its own unique legal rights and obligations, especially upon separation. Common-law partners in Ontario are typically recognized after cohabiting for at least three years or if they have a child together and maintain a relationship of some permanence. While married spouses have a presumptive right to share and divide property growth, common-law couples do not have this automatic right, and property division upon relationship breakdown is based on ownership and contributions.
Common-law spouses in Ontario have similar rights to married couples when it comes to spousal support, which is governed by the Family Law Act for both groups. Spousal support aims to address economic disadvantages resulting from the relationship, and factors such as the length of the relationship, roles during the relationship, and financial needs and abilities upon separation are considered. Custody and child support for both married and common-law spouses are also governed by the same principles, focusing on the best interests of the children.
In other jurisdictions, such as the UK and Ireland, common-law relationships may be recognized differently. In Ireland, for example, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) gave some rights to unmarried cohabitants. However, a 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
To protect their legal rights and ensure fair outcomes, common-law spouses can consider entering into cohabitation agreements or property law arrangements. These legal agreements can outline the rights and obligations of each partner and provide a version of insurance for the relationship. It is recommended that each partner receives independent legal advice before signing any agreements.
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Common-law and cohabitation agreements
Common-law spouses are those who live together in a marriage-like or conjugal relationship without being legally married. In Ontario, a common-law relationship is typically recognised after cohabiting for at least three years or if the couple has a child together and maintains a relationship of some permanence (generally, one year).
Cohabitation agreements are contracts that establish rules for property division, financial responsibilities, and other matters. They allow couples to contract out of the Family Law Act statutory requirements for property division and spousal support. These agreements can be made whether the couple intends to get married later or not, and they can be done after the couple has started living together. However, it is recommended to obtain one early in the relationship and before the two-year mark.
Cohabitation agreements are similar to prenuptial agreements, and they can bring peace of mind and save legal headaches if drafted properly. They can help establish emotional and financial security before a couple combines their assets. These agreements can include guidelines for child support, but they cannot waive or limit it. Additionally, cohabitation agreements can be useful for estate planning, as unmarried partners have no more rights to each other's property than any other individuals.
It is important to note that not all states or provinces recognise common-law relationships or cohabitation agreements. In Ontario, for example, family law distinguishes between married spouses and common-law partners, as each relationship has unique legal rights and obligations, especially upon separation. While common-law couples in Ontario have similar rights to making spousal support claims, there are differences in property rights. Married spouses have a presumptive right to share and divide property growth, while common-law couples do not have this right upon relationship breakdown.
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Common-law and inheritance
Inheritance laws in the US are governed by three systems: community property, elective community property, and common law. In common-law states, ownership is determined by whose name is on the title, and a spouse is not automatically entitled to a 50% interest in property acquired during the marriage. However, in some common-law states like Texas, a common-law spouse is afforded the same rights and privileges as those in a formal or traditional marriage, including community property rights, homestead rights, and exempt property rights.
In common-law relationships, inheritance rights can vary depending on the region and the legal definition of a "spouse". In Canada, for example, common-law partners can only inherit intestate estates (without a will) in British Columbia, Manitoba, Saskatchewan, and the Northwest Territories. In all other regions, the common-law partner has no inheritance rights without a will unless they meet the requirements to be considered a legal spouse.
In the absence of a will, inheritance is typically based on succession laws, which prioritize legal spouses, children, and other family members. These laws also aim to protect against accidental disinheritance, especially in the case of children. In some cases, certain relatives may have the right to claim an inheritance, regardless of the terms of the deceased's will.
With a will in place, individuals have more control over how their assets are distributed and can choose to include common-law partners, friends, family members, or charities as beneficiaries. Additionally, a surviving spouse can choose to accept the amount specified in the will or challenge it in court to claim a higher amount, depending on the state's inheritance laws.
Overall, the inheritance rights of common-law spouses can vary depending on the specific laws and regulations of the state or region in which they reside. It is important to consult with a legal professional to understand the specific rights and requirements pertaining to common-law and inheritance.
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Common-law and child custody
Common-law marriages are not recognised by most states. However, when these relationships end, almost every state handles the situation similarly to a statutory divorce. In the case of a divorce, common-law spouses have the same rights and obligations as married spouses to care for their children. This includes rights to child custody and obligations to provide financial support.
Child custody arrangements focus on the child's best interests. Courts have the option to choose from several types of custody, including temporary, exclusive, and joint custody. Temporary custody is granted to an individual during divorce or separation proceedings. Exclusive custody is when one parent has all custodial rights, and the non-custodial parent may receive supervision or visitation rights. Joint custody grants parents equal rights in making decisions about the child's upbringing. Courts generally prefer joint physical custody, where the child spends nearly equal time with both parents.
If parents cannot decide on a custody arrangement, they may choose to go to mediation or be required to attend court-ordered mediation. A mediator is a neutral trained professional who helps the couple communicate and find consensus on a parenting plan. If mediation is unsuccessful, a child custody evaluation may be necessary. It is recommended that parents seek legal advice from a family law attorney to understand their rights and options and guide them through the legal process.
In determining custody, courts consider factors such as the child's wishes (if they are old enough), which parent was the primary caregiver, any disabilities or special needs of the parent or child, and incidents of domestic violence. The court will ultimately decide on an agreement that preserves the best interests of the child.
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Frequently asked questions
A common-law relationship is where two people who are not married live together in a marriage-like relationship. This means that they share a home, refer to themselves as spouses or partners in public, and share finances, friends, and an emotional and sexual relationship.
Common-law spouses are not entitled to the equalization of family property, inheritance, or the same legal rights as married couples in Ontario. For example, common-law spouses are not considered next-of-kin and do not have the right to contest a will.
The Family Law Act describes the guidelines for spousal support in a common-law marriage in Ontario. It also applies to common-law partners, but some rights and obligations differ from those of married couples.
A cohabitation agreement allows a couple to contract out of the Family Law Act statutory requirements for property division and spousal support. It allows a couple to be creative with how their assets/debts may be handled in the event of a separation.
A conjugal relationship is a marriage-like relationship where a couple shares a home, finances, friend groups, and an emotional and sexual relationship. This prevents long-term housemates from being considered common-law spouses.
