You probably think it goes without saying that a person can only have one spouse at a time. But it may come as a surprise that under Canadian law, there may sometimes be an issue about who a person’s “spouse” really is.
This is for two reasons. First, with multiple marriages and living-together arrangements being common in our society, the question of who is a “spouse” can be murky. For example, a person may refer to another as a “wife” or “husband”, but in reality, there was never a formal legal marriage. (And this can especially be confusing in the context of Wills – a reference by a deceased common-law spouse to “my wife” or “my husband” in a Will can give rise to important questions about who he or she may have meant).
Secondly, the law can have slightly different definitions of what constitutes a “spouse”, depending on the legal context. This was the situation in an Ontario Court of Appeal case called Carrigan v. Carrigan Estate, 2012 ONCA 736, where a dispute arose between a deceased’s man’s wife (from whom he was separated) and his live-in common law spouse. He had never divorced his first wife, and they had no separation agreement, so the legal dispute arose because his pension benefits were payable to his “spouse” upon his death. The court found that for the limited purpose of pension benefit entitlement, the deceased had two spouses.
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Fortunately, in Family Law it is usually not so complicated – except perhaps in cases where a person has multiple unsuccessful marriages, or starts a new relationship without officially ending an old one. (And in these cases it’s always wise to end an old relationship with a separation agreement, and begin a new one with a domestic contract). But it’s worth bearing in mind that in your Wills, insurance policies, trust documents, and anywhere else that you need to designate your “spouse”, it’s important that you be as clear as possible.
Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in separating and getting divorced in Ontario. Contact us to set up a consultation.
