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Have you ever come across individuals who refer to themselves as being “common law” spouses? If the answer is yes, have you ever wondered what the difference is between common law spouses and married spouses? From a legal perspective, there are many key differences between these types of spouses. The purpose of this article is to explore the features of common law relationships in Canada.

What is a “Common Law” Spouse?

Before we begin, you may be wondering: what do the words “common law” mean? Under Ontario law, specifically section 29 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), individuals in Ontario are considered to be common law spouses if they satisfy either of the following requirements:

(1) the couple has cohabited together in a conjugal relationship for at least three years; OR,

(2) the couple has a child together and has lived together for at least one year.

Though the above-noted requirements specifically concern couples in Ontario, such requirements are generally used to define common law spouses across Canada.

A “conjugal relationship” means that the couple shares a home, finances, and an emotional and sexual relationship. Long-term roommates are generally not considered to be common law spouses in the eyes of Ontario law. The reason that three years is used as a cut-off in the legal definition above, is that spousal support obligations are generally triggered under Ontario law at the three year mark.

Know Your Rights as a Common Law Couple

It is important to understand that the legal rights of common law partners are not the same as the legal rights of married spouses. In common law relationships, you may be entitled to spousal support but will not be entitled to an equalization payment from your former common law partner. This means you cannot make a property claim under the FLA. You have to be legally married to make an equalization claim under the FLA.

Despite the above, common law spouses may bring claims for unjust enrichment in the relationship. For example, a common law spouse generally cannot be unjustly enriched by the other spouse’s financial contributions. The Supreme Court of Canada has established a three-part test to determine whether a common law spouse has unjustly enriched the other spouse. If all of the following requirements are established, then it is likely the court will determine that the common law spouse was unjustly enriched:

(1) an enrichment enjoyed by the spouse;

(2) a corresponding deprivation suffered by the other spouse; and,

(3) the absence of a juristic reason for the enrichment.

As an example, a common law spouse providing domestic services, including housework, may constitute unjust enrichment to the other spouse.

For common law couples, property generally belongs to the person who bought it. Contrary to married couples, common law spouses cannot divide the increase in value of property they bring with them to the relationship. Common law couples are not entitled to equalization or a division of property upon the breakdown and dissolution of the relationship. This is because common law couples are choosing not to make themselves subject to the property sharing regime that applies to married couples. Nevertheless, if one partner contributed financially to their common law spouse’s property, they may be able to claim some benefit through a constructive trust resulting from an unjust enrichment.

A constructive trust allows common law spouses to have a share in the value of the property, even if they do not hold legal title to the property. This means that a spouse who owns property actually holds part or all of the property ‘in trust’ or in care of the other spouse. The courts can grant this remedy if it decides that a common law partner was unjustly enriched at their expense.

What Would Constitute a Constructive Trust in Ontario?

If one partner contributed to the value of the property through work or money while their spouse benefitted, the court may award a share of the property to the other spouse. Such contributions may include a spouse staying home with children and doing the majority of the housework. Outside of instances of unjust enrichment, common law couples generally have no rights to each other’s property.

Formal Marriage vs. Common-law Marriage

Compared to a common-law marriage, a formal marriage is a full legal intertwining of romantic partners under a process provided by law. There are no formal steps to take to enter into a common-law relationship. Alternatively, to be legally married, the couple must obtain a marriage certificate.

One advantage that a common-law marriage enjoys over a formal marriage is its informality and flexibility. However, as mentioned above, married couples usually have more rights than those in common-law marriages. Some of these rights include the right to spousal benefits during the course of the marriage. Further, a formally married individual may be entitled to certain workplace benefits that take into consideration the fact that they have a married spouse. Formally married spouses also have the right to inherit any assets if either spouse dies without making a will, alongside any children of the marriage.

Apart from the range of rights available to formally married spouses, a formal marriage also protects the spouses during the separation or dissolution of the marriage.

How to Protect Your Common Law Rights in Ontario

When you live in a common law relationship, you can separate from your spouse at any time. You do not need to get a divorce to separate because you are not married to your spouse in a common law relationship. However, with regard to child support, there is no difference between being married or not. A parent will have the same child support obligations regardless.

To protect your rights in a common law relationship, you are encouraged to get a written agreement such as a separation agreement if you and your spouse do separate. A separation agreement should address important issues such as child custody, access to your children, spousal support, child support, and common law property rights issues.

What Happens When a Common-law Spouse Dies Without a Will?

Like most things, rules following the death of a spouse without a will are different for married spouses than for common-law couples. When a married spouse dies without a will, the surviving married spouse typically becomes the sole owner of any money of property they both owned jointly. For example, any joint real estate held or any money in a joint bank account would typically become the sole property of the survivor.

Unlike married spouses, when a common law spouse dies without a will, there is no automatic right to an inheritance from the estate of the deceased. Common law partners in Ontario would not inherit any of their spouse’s property unless it was left to them in a valid legal will. Without a will, a deceased common-law spouse’s assets and property would be distributed to their closest living blood relatives, and if there are no living blood relatives, the entire estate generally goes to the Ontario government. Despite the above, the surviving spouse may get life insurance money and registered investments if they had been named as a beneficiary on those accounts.

Can Common-law Partners Get Spousal Support from an Estate?

If the surviving common-law spouse is considered a dependent of the deceased, they can make a claim in court to seek support from the estate. To be considered a dependent in this case, the surviving spouse has to prove that they were receiving financial support from their partner.

The court will then decide if they are truly a dependent spouse, if there is a legitimate need for support, and if the deceased partner provided for them accurately.

How Can Chand & Co. Assist?

It is important to understand what common-law relationships are and the differences between married spouses and cohabitating partners in order to protect your legal rights.

At Chand & Co., we understand the particulars of common law relationships, separation agreements and cohabitation agreements in Ontario. Our team can provide helpful insight regarding your rights as a common-law spouse in Ontario. We invite you to schedule a consultation with us to discuss your legal rights at 416-583-2377 or by email to admin@chandlitigation.com.


*DISCLAIMER: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this website are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.*

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