Kara Sears
The term common-law marriage is often used to refer to cohabiting couples, but it is important to note that the legal rights of unmarried partners in a common-law relationship can vary depending on the jurisdiction. In some places, common-law couples may have similar rights to married couples, including the right to make healthcare decisions for each other and access to their partner's pensions and social benefits. However, in other cases, common-law spouses may not have automatic rights to inheritance or equal division of property upon separation. It is important to consult a lawyer to understand the specific rights and obligations in a common-law relationship, as they can differ based on the specific circumstances of the couple and the laws of the province or territory.
Characteristics of a common-law relationship and the legal rights associated with it
| Characteristics | Values |
|---|---|
| Legal recognition of marriage | Common-law marriages are not legally recognised as marriages, but may be considered a "domestic partnership", "conjugal union", or "civil union". |
| Legal rights | Common-law couples have some similar rights as legally married couples, but these are not always the same and can vary depending on the context and jurisdiction. |
| Property rights | Common-law couples do not have an automatic right to equal division of property upon separation, but this may vary depending on the province or territory. |
| Healthcare decisions | In Canada, common-law partners have the right to make healthcare decisions for each other if their partner becomes incapacitated, but this typically requires a legal document such as a Power of Attorney for Personal Care. |
| Inheritance rights | Common-law partners are not automatically entitled to their partner's assets if they die without a will. The assets will be distributed according to the Intestate Succession Act or provincial laws, and the common-law partner may need to file a claim to receive a share. |
| Spousal support | Common-law partners may be able to agree on spousal support in the event of a breakdown of the relationship, including the amount, frequency, and duration. If an agreement cannot be reached, an application for spousal support can be made to the court after living together for at least two years. |
| Child custody and support | Both parents, regardless of marital status, have legal rights and responsibilities towards their children, including financial support and equal custody rights. |
| Legal termination | Common-law relationships do not require a legal divorce for termination, unlike marriages. Instead, separation and annulment of any cohabitation agreement are typically needed. |
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What You'll Learn
Common-law marriage recognition
The recognition of common-law marriages varies across different countries and states. In some places, common-law marriages are recognised and provide similar rights to legally married couples, while in other jurisdictions, they are not recognised at all.
Canada
In Canada, each province and territory has its own laws regarding common-law relationships, which can create complexity. Common-law partners in most provinces do not have the automatic right to an equal division of property upon separation. However, in certain provinces like 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 any increase in the value of property brought into the relationship.
Common-law partners in Canada have the right to make healthcare decisions for each other if their partner becomes incapacitated, but this typically requires a legal document, such as a Power of Attorney for Personal Care. They also have the same rights as married couples regarding pensions and social benefits, including the Canada Pension Plan (CPP) and Old Age Security (OAS).
In terms of inheritance, common-law partners in Canada may not automatically inherit their partner's assets if they do not have a will. The distribution of assets in the absence of a will is governed by provincial laws, such as the Intestate Succession Act, and may result in the deceased's assets passing to their family members.
United Kingdom
A 2008 poll in the UK showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. While there is no legal recognition of "common-law marriage" in the UK, cohabiting couples may be defined as “unmarried spouses” for certain legal purposes, such as taxes and financial claims, and treated similarly to married spouses in these contexts.
India
In the case of D. Velusamy v D. Patchaiammal (2010), the Supreme Court of India defined a "relationship in the nature of marriage" as "akin to a common law marriage" with reference to the Domestic Violence Act of 2005.
Ireland
Ireland does not recognise common-law marriage, but the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (in force between 2010 and 2015) provided some rights to unmarried cohabitants.
United States
The recognition of common-law marriage in the United States varies by state. In states that recognise common-law marriage, it provides all the rights of being married. However, it is important to note that not all states recognise common-law marriage, and legal advice should be sought to understand the specific rights and obligations in each state.
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Property rights
The property rights of common-law couples vary by jurisdiction and are not always as well-defined as those of legally married couples. In some places, common-law relationships are not legally recognised, and property rights are determined by property law.
In Canada, common-law relationships are recognised for certain purposes, and common-law couples may have some of the same rights as married couples. However, common-law spouses are not automatically entitled to half ownership of the home or equal division of property when the relationship breaks down. If the house is only in one spouse's name, they are the only one with a legal claim to it. If the common-law couple has children, the Hindu Marriage Act stipulates that they are treated as legitimate children in terms of inheritance, but only if the parent is Hindu, Sikh, Buddhist, or Jain.
In the Canadian province of Quebec, a common-law spouse is not automatically entitled to anything if their partner dies without a will. The estate will be distributed according to the Intestate Succession Act, which may give the assets to the deceased's family members. To ensure that a common-law partner inherits, it should be stated in a will.
In Ontario, gifts made in contemplation of marriage, such as an engagement ring, may be returned to the giver if the relationship ends, but courts have been inconsistent in applying this law.
In some cases, a common-law partner may be able to make a claim for a constructive trust to remedy unjust enrichment if they feel they have contributed extensively to the value of a certain asset, such as a home or pension. This can be a complex process, and it is important to seek legal advice as soon as possible after separation.
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Healthcare decisions
In a common-law relationship, partners might not automatically have the legal right to make healthcare decisions for each other in the event of incapacitation. The laws regarding common-law relationships vary by province or territory in Canada and by state in the US.
In Canada, common-law partners can obtain the right to make healthcare decisions for each other if their partner becomes incapacitated. This typically requires a legal document, such as a Power of Attorney for Personal Care, to be in place.
In the US, a similar concept is the durable power of attorney for healthcare, which gives one partner the authority to make healthcare decisions for the other. Another document, the healthcare declaration, outlines the types of medical treatment one wishes to receive if they become unable to make their own healthcare decisions. However, this document cannot cover every circumstance, and a durable power of attorney for healthcare is needed to make decisions not covered by the declaration.
To obtain these rights, it is important to create the necessary legal documents, such as a medical directive or a durable power of attorney for healthcare. These documents can be obtained from various sources, including software like Quicken WillMaker & Trust (Nolo) and nonprofit organizations like Caring Connections. It is recommended to consult a lawyer to understand the specific laws and requirements in your province, territory, or state.
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Child custody and support
In the context of common-law relationships, the term “common-law marriage” is often used colloquially to refer to cohabiting couples, regardless of their legal rights. It is important to note that common-law marriages are not legally recognised as marriages in many places, including Canada, Ireland, and the UK. However, in certain situations, informal cohabitation relationships are acknowledged and granted specific rights and obligations.
When it comes to child custody and support in a common-law relationship, the rights and responsibilities are generally similar to those of married couples. Common-law spouses have equal rights and obligations as married spouses in caring for their children, including the right to custody and the obligation to provide financial support. If the parents cannot agree on custody or child support arrangements, the courts will intervene and make decisions based on the best interests of the children. The court will consider factors such as financial stability, emotional support, connection to the child, and who is the primary caretaker.
In some instances, one parent may be deemed unfit due to issues like domestic violence, financial instability, or other factors impacting their suitability as a parent. In such cases, the other parent may be granted sole custody, while the unfit parent may receive partial custody or visitation rights. Establishing a lawful agreement is crucial to protect parental rights and ensure a stable schedule for the child.
It is important to note that the specific laws and procedures regarding common-law relationships and child custody can vary depending on the jurisdiction. For example, in Texas, courts tend to favour awarding shared custody whenever possible. In Canada, while common-law partners may not automatically inherit each other's assets, they can be recognised as “unmarried spouses” for certain purposes, such as taxes and financial claims, and treated similarly to married spouses.
To fully understand your legal rights and obligations in a common-law relationship, especially regarding child custody and support, it is highly recommended to consult with a family law lawyer or seek legal advice specific to your jurisdiction.
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Spousal support
Common-law marriages are not legally recognised as marriages, but they are sometimes referred to as "unmarried spouses" and are treated the same as married spouses in certain contexts, such as taxes and financial claims. Common-law spouses in Ontario have the same rights to spousal support as married couples. However, spousal support is not automatic and must be outlined in a cohabitation agreement or negotiated in a separation agreement. If an agreement cannot be reached, an application for spousal support can be made to the court. This application can only be made when the parties have lived in common law for at least two years.
In the case of separation, common-law spouses may be entitled to spousal support. For example, if you had a higher income or more assets than your partner, you may need to pay spousal support to help your spouse become financially independent. Conversely, if you are the spouse with less financial security, and your partner can pay, you may be entitled to spousal support.
It is important to note that common-law spouses do not have the same rights as married spouses in all respects. For instance, in the context of estate planning, common-law spouses are not automatically protected. If a common-law partner dies without a will, their assets will not automatically pass to their spouse, and their spouse will not be entitled to anything. Therefore, it is crucial to have a will in place that designates the common-law spouse as a beneficiary to ensure they inherit according to the deceased's wishes.
The rights of common-law spouses can vary depending on the province or jurisdiction. For example, in Quebec, a common-law spouse is always entitled to nothing, whereas in Ontario, a couple is considered common-law after living together for at least three years or if they have a child together and have lived together in a relationship of some permanence. Given the legal complexities and variations across jurisdictions, it is highly recommended to consult a lawyer to understand your specific rights and obligations in a common-law relationship.
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Frequently asked questions
A common-law relationship is an interpersonal relationship that is not legally recognised as a marriage but may be considered a parallel interpersonal status such as a domestic partnership or civil union. Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or ceremony.
Your legal rights in a common-law relationship will depend on the laws of your province or territory. In most provinces and territories, common-law partners don't have an automatic right to an equal division of property upon separation. However, in certain provinces like British Columbia, common-law partners have the same property rights as married couples after living together for a certain period. Common-law partners can also be obligated to provide financial support to each other, both during the relationship and after it ends, depending on the circumstances.
If your common-law partner dies without leaving a will, their assets will not automatically pass to you, regardless of how long you have been together. Their estate will be distributed according to the Intestate Succession Act, which may mean that their assets will be given to their family members.
In Canada, common-law partners do have the right to make healthcare decisions for each other if their partner becomes incapacitated. However, this right is not automatic and typically requires a legal document, such as a Power of Attorney for Personal Care, to be in place.
