Article written by Ron Shulman
A long-term romantic partnership can take several forms. If you are in one, and it’s working well, then the differences between the various types may seem irrelevant. But if that relationship ends, the legal distinctions between a common-law and marriage relationship can suddenly become quite important.
If you and your ex have decided to split, your relationship status will sometimes affect your respective legal rights – and sometimes it won’t. As with many things in family law, the answers will depend on your unique circumstances.
Marriage vs. Common Law
Let’s begin with the basics. Under Ontario law, your relationship with your partner can take one of at least two forms.
1. Spouses who are formally married (i.e. you have undergone a legal marriage ceremony), or
2. Part of a common law couple (i.e. unmarried but living together).
If you are formally married, then you become spouses to each other as soon as the ink is dry on your marriage certificate.
But if you are living together as a common law couple, the law recognizes you as spouses with mutual legal obligations only after you meet certain thresholds. Specifically you must either:
1. Live together continuously as a common-law couple for at least three years; or
2. Live together for any length of time, as long as you are in a “relationship of some permanence” and also have a child together.
There are established legal tests for what is considered a “relationship of some permanence” including considerations around how break-ups and reconciliations can affect things. If you have more questions about when you can qualify for common-law spousal status, this article will offer more information.
Now let’s consider what happens when either a legal marriage or a common-law relationship ends.
In connection with financial support – be it spousal support or child support – there is essentially no difference between being formally married or being a common-law spouse.
In both cases, you are obligated to support each other and your children during your time together, and must continue to do so (as dictated by the law and any court order) after you separate.
Child Custody and Access
Likewise, there is no legal distinction between parents who are formally married, and those who have a child together while living as common-law spouses. As it relates specifically to your rights and duties towards your child, the law sees both relationships as being equivalent.
So regardless of the form your spousal union takes while together (and unless a court orders otherwise), as parents you both have an equal right to have care of, and access to, your children. If you later decide to split, then you both have an equal chance to assert custody and access rights over them, subject to the court’s ruling on the issue.
Many people are surprised to learn that when it comes to post-split division of property, there is a big difference under Ontario law between being a married spouse, and a common-law spouse.
If you and your ex were formally married and decide to split up, specific legislation addresses how your property will be divided after-the-fact. But it is much more complex for common-law spouses: There is no statute-based regime that governs this issue.
Instead, courts will examine various details about your relationship, with a keen focus on the duration, extent, scope and quality of the investment you gave to it. The court will used the information to determine a fair outcome on how your assets should be divided between the two of you.
One test involves the court looking at whether you and your common-law partner were engaged in a “joint family venture” together. This requires the court to reflect on whether you were each working towards and contributing to a mutual family goal. This can be as simple as jointly running and managing your family unit and household; or it can be more complicated, like pouring your joint efforts into running a successful business and raising a family, while one of you is also taking advanced courses at university.
On paper, these scenarios often result in one partner generating a greater share of ownership in property and assets than the other. So when your common-law union ends, the court is left with the task of redistributing that property to achieve a fair result.
Couples may be ordered to divide assets fairly, or one person may have to make a cash payment to the other to compensate for his or her efforts. This might be an award of damages, or it could be a fee-for-service amount based on the court’s dollar-value assessment of your joint family venture’s success.
The court also has the equity-based concepts of a “constructive trust”and a “resulting trust” at its disposal, to address any unfairness arising from the end of your common-law union. If damages are an insufficient remedy, then for property owned by one of you the court can essentially “stamp” it with a legal designation that all or part of it is actually being held for the benefit of the other.
Again, the longer and more intertwined your common-law relationship was, and the greater the mutual investment, the more likely the court will use these tools to achieve a fair outcome.
What About the House?
Last, but certainly not least, is the division of a home shared by former common-law partners. The answer may surprise you: The ownership and right to possess the home stays with whoever is the legal title-holder, no matter how long you were living together common-law. This is starkly different from certain automatic legal rights that married partners gain in the matrimonial home.
Get Advice on Your Status, and What it Means
In the real world, the exact manner in which the legal distinctions between a marriage and a common-law relationship will play out are not always cut-and-dried.
If you need legal advice that is tailored to your particular relationship and situation, or if you are thinking of living with someone and wonder about how it may affect your rights, do not hesitate to speak with a family lawyer.