Common Law Marriage

According to Ontario’s common law marriage, a couple must have lived together in a “conjugal relationship” for at least three years before getting married. In the case of couples who have a child, this duration is reduced to a single year.

The law does not accord common-law partners the same rights and obligations as married couples. You can protect yourself if your relationship breaks down by understanding the differences between married spouses and cohabitating partners under Ontario common law.


What Is Common Law Marriage?

The term “common law marriage” refers to a marriage that has made legal recognition between two people who are not married legally by obtaining a marriage license or getting married in a ceremony.


In Canada, What Is A Conjugal Relationship?

The term “conjugal relationship” in Canada refers to a structured relationship that entails more than just physical intimacy, but also the sharing of home and finances, the presence of friends and family members, and the psychological bond that develops between two people.


The Difference Between A Marriage And A Common Law Marriage

Making a life with your partner involves many decisions, from choosing where to live to who cooks to whether or not to have children. 


1) Property Sharing

An equalization payment is only available to married spouses. Under the Family Law Act, divorced spouses can file a claim to equalize their net family properties after separating. Net assets acquired during a marriage are divided equally under general rules. There is no equalization payment in a common law marriage. There is no automatic right for a common-law spouse to share property acquired by their other spouse during the relationship; however, there are some circumstances where common-law spouses may have acquired rights to share property.


2) Support For Spouses

In the event of separation, married spouses are automatically eligible for spousal support. In the event that married spouses separate, they are automatically entitled to request spousal support from their former spouse; regardless of how long the marriage lasted. 

Common law couples are not legally required to split property acquired when they lived together. Furniture, household items, and other property belong to the person who bought them. Common law couples do not have the right to split an increase in value of the property they brought with them to the relationship. If you contributed to property your spouse owns, you may have a right to part of it. Unless your spouse agrees to pay you back, you may have to go to court to get back your contribution. 

Although there is no requirement to divide property on separation, common law spouses may choose to enter into a domestic contract such as a cohabitation agreement or separation agreement that sets out their respective rights to property.


3) The Will And Succession

In common law marriage, spouses cannot inherit from their spouses automatically. When a spouse dies without a will in Ontario, only the married spouse is entitled to their share of the estate. The term ‘intestate succession rights’ refers to these rights. After the death of one spouse, another spouse could ask for an equalization of net family property. Intestate succession rights are not available to common-law spouses, so they cannot seek an equalization of the net family property after the death of their spouse. In the absence of a valid will, they are not entitled to share in the estate.


4) The Family Home

Unless a marriage contract states otherwise, married spouses are not allowed to claim credit for equity in their premarital homes if they are still in the “matrimonial home” at the time of separation. The rights of common law marriage are to own and dispose of a family home are governed by ownership, not common-law rights.


Learn More About Common Law Marriage With Hussain Law

We help you decide if this is the best process for you. Whether we are representing you in a contentious divorce, in negotiating a domestic contract, or in a collaborative process, our aim is to provide practical and cost-effective solutions.

At Hussain Law, we focus on helping our clients navigate separation and divorce’s emotional and financial challenges. If you have a family law issue or want to prepare for divorce that you need assistance with, please contact Ayesha Hussain a divorce lawyer in Toronto at 647-428-3919.

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