I often hear common-law spouses referring to each other as “husband” and “wife”, but this is a very common misnomer. While common-law spouses may have committed relationships equal to those of married couples, it is important to be aware of significant differences between the rights and obligations of married spouses and common-law spouses in the eyes of Ontario law.
First, it is necessary to understand when a common-law relationship exists under the law. Many people believe that once a couple has been living together for over one year, they are common-law. This assumption is understandable because the standard for qualifying as a common-law spouse according to the Canada Revenue Agency and many employer benefit plans is one year. But, the threshold is very specific for family law purposes: You have lived in a conjugal relationship with your partner for three consecutive years; or for a period of some permanence with a child.
Once you have established that you are in a common-law relationship, the question becomes “what are your rights and obligations?” A concern common-law spouses often raise with me is whether they will have to give up half of their property in the event of a breakdown of their relationship.
Married spouses have a right to equal division of all assets accumulated during a marriage whether they are in the joint or sole names of one or the other spouse. Significantly, they also have a right to equal division of the home in which the couple resides, whether it was purchased before or after marriage, and regardless of whether it is in the name of only one of the spouses.
Common-law spouses, on the other hand, do not have a legislated right to a share in each other’s property. If property is in the sole name of one of the spouses, it remains that person’s property upon separation. This does not affect property in joint names, which is divided equally between two owners, regardless of the nature of their relationship.
A common-law spouse can acquire an interest in their partner’s property based on the impact of his or her contribution to its increase in value. So, for example, if you have paid for renovations or have performed maintenance on the home, you can make a claim for an interest in your spouse’s property. These claims are complex and can be difficult to prove without a lot of supporting evidence.
So, what rights do common-law spouses share with married spouses? As a common-law spouse, your right to spousal support is equal to that of a married spouse. This does not mean that spousal support is automatic, but like in a married relationship, the same principles of establishing your entitlement to and calculating the amount and duration of spousal support apply to common-law couples.
A child’s right to receive child support, which is payable to the parent with whom the child(ren) primarily reside(s), exists independently of the nature of the parents’ relationship. So, whether you are married, common-law or never lived together at all, children have equal rights to receive child support.
While these are only some of the differences between common-law and married relationships, the important thing to take from this discussion is that once you are aware that there are differences, you can properly plan for what will happen in the event of a breakdown of the relationship or if one spouse passes away. Proper planning includes a) preparing a cohabitation agreement with the assistance of a lawyer and, b) ensuring you and your common-law spouse have proper wills in place.
Ashley Waye is a founding partner of Kith & Kin LLP, a family law firm in Toronto.
Contributed by Ashley Waye