Keith Mack
The rights of common-law partners vary across different countries and even within different regions of those countries. In the UK, for instance, the term common-law partner is a colloquialism that is not recognised in law, and cohabiting couples do not have the same rights as married couples. In Canada, common-law partners are generally only entitled to what they own themselves, although they may be able to claim a share of property if they have contributed to it. In Ontario, Canada, common-law partners are entitled to share property rights and benefits, such as pensions and insurance, and are also entitled to spousal support if the relationship ends. In British Columbia, common-law partners who have lived together consecutively in a marriage-like relationship for two years or more automatically have the same property rights and obligations on separation as legally married spouses.
| Characteristics | Values |
|---|---|
| Common law recognition | Common law is recognised in Canada and the UK, but the definition varies by province/territory and there are no legal rights in the UK. |
| Definition | In Canada, common law spouses live together without being legally married. In Ontario, they must cohabit for at least three years, or one year if they have a child together. In British Columbia, the duration is two years. In Nova Scotia, they must live together and publicly refer to themselves as partners or spouses. |
| Property rights | In Canada, common law partners may have a claim to property if they have contributed to it. In Ontario, they do not have the legal right to split property or debt acquired during the relationship. In British Columbia, they have equal property rights and obligations as married spouses. |
| Inheritance | In Canada, common law partners do not automatically inherit their spouse's estate or assets. In Quebec, a common law spouse is entitled to nothing. In the UK, unmarried partners cannot claim their partner's pension. |
| Children | In Canada and the UK, parents have the same legal rights and responsibilities toward their children, irrespective of marital status. In the UK, unmarried fathers must be named on the birth certificate, obtain a court order, or enter into a parental responsibility agreement with the mother's consent. |
| Separation | In Canada, there is no formal process to separate from a common law spouse. In the UK, unmarried couples cannot claim financial support from each other on separation. |
| Immigration | In Canada, common law partners may be eligible for immigration sponsorship. |
| Taxes | In Canada, common law spouses may be eligible for tax benefits. |
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What You'll Learn
Property ownership
In the UK, the term "common-law partner" is a colloquial term for cohabiting couples who are not married or in a civil partnership. In the eyes of the law, this term holds no legal rights, and unmarried couples will not have the same rights as married couples, regardless of the length of their relationship or whether they have children.
The ownership of property can be a complex issue when unmarried couples separate. There is a difference between the legal ownership of the property and the parties' respective beneficial interests. If the house is in your partner's sole name, you do not have an automatic right to share in the property on separation. However, you may be able to prove a beneficial interest if you can demonstrate that it was intended for you to share the equity in the property. This can be shown through financial contributions to the property, such as paying the deposit, contributing to the mortgage, or making significant improvements.
To avoid disputes, legal documents such as a Declaration of Trust or a Cohabitation Agreement should be in place to outline ownership rights and intentions. A Declaration of Trust is a formal document that specifies how property or other assets are owned between cohabiting partners and can assist with disputes over ownership. A comprehensive cohabitation agreement provides a clear framework for managing shared assets and financial responsibilities in the event of a relationship breakdown.
In certain jurisdictions, common-law partners are not legally recognised in the same way as married couples, and having a will is crucial to ensure your partner inherits your property. In Ontario, Canada, for example, a couple must have lived together continuously for three years to be considered common-law, after which they have the same obligations as married spouses. In British Columbia, two people are considered spouses if they have lived together in a "marriage-like relationship" for at least two years.
In the Philippines, common-law relationships, or "live-in relationships," do not enjoy the same protections as legally married couples under the Family Code. Upon the termination of a common-law relationship, the division of property under co-ownership follows a process similar to liquidation, identifying co-owned assets, dividing them equitably, and retaining individual property.
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Inheritance
In Canada, inheritance is typically considered separate property, belonging exclusively to the inheritor. This means that you are not obligated to share your inheritance with your common-law partner. However, if the inheritance is commingled with marital assets or used to acquire joint property, it may become subject to division and your partner may have a claim to it.
In the event of the death of a common-law partner, the surviving partner is generally not entitled to any inheritance if the deceased did not leave a will, also known as dying intestate. The estate would then be distributed according to the will or, if there is no will, through succession laws of the region. Common-law partners can only inherit intestate estates in certain regions, such as British Columbia, Manitoba, Saskatchewan, and the Northwest Territories. In Ontario, a common-law surviving spouse has no rights to inherit real or personal property from their spouse who died without a will.
To ensure your common-law partner receives an inheritance, it is important to create a will that names them as a beneficiary. This guarantees their legal claim to inheritance. Additionally, you can create an estate plan that includes documents such as a will, power of attorney, and an asset list. By taking these proactive steps, you can protect your partner's inheritance rights and ensure their financial security in the event of your death.
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Child maintenance
In the UK, the term "common-law partner" is used to describe cohabiting couples who are not married or in a civil partnership. While the term is widely used, it is not recognised in law and, as such, common-law partners do not have the same rights as married couples.
Despite this, common-law partners are entitled to child maintenance payments for the benefit of the child. Child maintenance is money to help pay for a child's living costs, and it is paid by the parent who does not usually live with the child to the person who has most of the day-to-day care of the child. This is also called child support. The main carer is usually a parent, but it can also be a grandparent or guardian. Child maintenance is payable by the non-resident parent to the other parent, regardless of whether they are married or not.
There are three ways to arrange child maintenance. Some people arrange maintenance privately, some have maintenance calculated and collected under a government scheme, and some have arrangements made by a court order. If you can, it is best to arrange child maintenance directly with the other parent. This is called a private or 'family-based' arrangement. If this is not possible, you can apply to the Child Maintenance Service (CMS) to arrange maintenance for you. The CMS is the body that governs the payment and receipt of child maintenance payments for separated and divorced parents. You can ask the court to put this in a court order called a 'consent order'.
If you are the paying parent, you will not have to pay tax on any child maintenance you pay. If you are a taxpayer, you will not get any tax relief on the child maintenance payments you make. If you are entitled to Council Tax Reduction, you might get less help if you also get child maintenance. You will still have to pay maintenance if you claim certain benefits or are part of a new partner's benefit claim for a means-tested benefit like Universal Credit.
If you have to pay for extra things, such as the cost of your child's disability or their education, you will need to go to court to ask for more maintenance. This is because the CMS does not take these extra costs into account in its calculation.
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Parental rights
In the UK, the term "common-law partner" is often used to describe cohabiting couples who are not married or in a civil partnership. However, legally, there is no recognition of a "common-law partner/spouse", and the rights of such couples depend on whether they are married or simply living together.
In the UK, mothers automatically have parental rights and responsibilities, as do fathers who are married to the child's mother. Unmarried fathers do not automatically have parental responsibility for their child, meaning they do not have the right to make decisions on their behalf. For an unmarried father to gain parental responsibility, he must be named on the birth certificate or enter into a parental responsibility agreement with the child's mother.
If parents cannot reach an agreement on decisions regarding their child, mediation can be attempted, or the court can be involved via Children Act Proceedings or child arbitration. A family law solicitor can assist in understanding the specific rights and responsibilities of each parent in matters of custody, support, and visitation.
In Canada, parental rights and responsibilities are determined based on the child's best interests. Both parents, regardless of marital status, have the responsibility to financially support their child. Non-biological parents can also apply for custody, access, and support rights, especially if they have acted as a parent to the child.
In both the UK and Canada, it is recommended that cohabiting couples create a cohabitation agreement to outline their rights and responsibilities in the event of a separation, including parental rights and financial arrangements for any children.
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Pension
In the UK, the term "common-law partner" is a colloquial term used to describe cohabiting couples who are not married or in a civil partnership. The law does not recognise common-law partners as having legal rights, and as such, cohabiting couples are not entitled to each other's state pensions or occupational pensions upon separation. However, an unmarried partner can choose who will receive their pension pot if they die before utilising it, and can also arrange a 'survivor pension' for a financially dependent partner.
In Canada, common-law partners are recognised differently. Common-law spouses are treated the same as married spouses when dividing a pension under the Family Law Act. This means that common-law spouses have the same rights and responsibilities as married spouses regarding pension benefit entitlements. To qualify for pension sharing, common-law partners must live together and either be receiving or have applied for a retirement pension. Additionally, a survivor benefit is payable to a common-law partner with whom the pension holder has lived for at least one year in a conjugal relationship, and the benefit is usually equal to half of the basic pension.
In British Columbia, a pension is considered shared family property, and a former spouse may be entitled to an equal share of the pension earned during the relationship. This can be a complicated process, and it is recommended to seek legal advice to help divide financial assets.
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Frequently asked questions
A common-law partner is a person who is in a romantic relationship with another person, lives with them, but is not legally married to them.
The rights of a common-law partner vary depending on the region. In some places, common-law partners are not recognised and therefore have no legal rights. In other places, they are covered by many of the same laws and protections as married partners. For example, in British Columbia, Canada, common-law partners who have lived together consecutively for two years or more have the same property rights and obligations as married spouses.
This depends on the ownership rights of the property. If the house is in one partner's name, the other partner does not have an automatic right to share in the property. However, they might be able to prove beneficial interest if they can demonstrate that it was intended that they would both share the equity in the property.
This depends on whether the deceased partner has a will. If they die without a will, their estate will be distributed according to default rules in their province or state. Common-law spouses are not treated the same as legally married spouses in most places.
Yes, parents have the same legal rights and responsibilities toward their children whether they are legally married, common-law spouses, or never lived together at all. However, unmarried fathers do not automatically hold parental responsibility for their children and must either be named on the birth certificate, obtain a court order, or enter into a parental responsibility agreement with the mother's consent.
