Difference Between Common Law and Marriage

When it comes to the law, there are generally two different types of relationships. Some couples declare their love in front of friends and family, formally and legally binding themselves together in matrimony. Other partners are content to remain in a close, monogamous relationship without all the pomp and circumstance. There is no “correct” way to confirm your commitment to a partner. However, if you need to dissolve a relationship, the legal status of your partnership comes into play and will have a financial impact on how your finalize the details of your separation.

What is the difference between a common-law partnership and marriage? How can the differences impact your legal separation from a partner? Toronto divorce lawyers at Musson Morneau LLP can help unravel the distinctions between common law and marriage and help you understand what comes next when you are ready to move on.

What Is Common Law Marriage?

Common law, sometimes called common law marriage, is an alternative to a marital arrangement between romantic partners. Couples who choose common law typically wish to affirm their monogamous relationship status without the formality of a typical legal marriage. A common law relationship is generally two romantically involved people living under the same roof. Usually in a common-law relationship, partners cohabitate while sharing finances and an emotional connection.

Canadians choose common-law relationships for multiple reasons. Some partners want to focus on other goals, like establishing a career or owning a home, before they propose marriage to a romantic partner. In the meantime, both are content to live together and share responsibilities, entering a common-law situation until their circumstances change. Other couples prefer the flexible and informal nature of a common-law arrangement over the formality of traditional marriage.

According to Canadian Census statistics, around one in five Canadian couples living together are in a common-law relationship. That number has skyrocketed by about 300 percent over the past 35 years.

What Is Marriage?

Couples choosing to follow a more traditional path toward partnership may opt for marriage. Marriage is more than a wedding or ceremony.  It is also a legal status.

Before a ceremony can occur, couples must file legal paperwork and apply for a marriage licence. In most cases, you can obtain a marriage licence from your local city hall or municipal court office. You will need to bring at least two pieces of government documentation which can include:

  • Valid passport
  • Record of immigration
  • Government-issued birth certificate
  • Canadian citizenship card
  • Valid driver’s license

A small fee will also be assessed depending on the province where you apply for your license. The marriage license is valid for 90 days from the date it was issued. Additionally, within 48 hours of your wedding ceremony, you must order your marriage certificate. Most wedding officiants can help mail in the required documentation.

Marriage has legal benefits.   Once a couple is married, they both obtain rights to equalize property, rights to live in the matrimonial home and rights to spousal support. Marriage can also make it easier for partners to share insurance benefits and qualify for certain spousal benefits.

What Is the Difference Between Common Law and Marriage?

For partners to be considered common law spouses in Ontario, they must be involved in a conjugal relationship and live together for a continuous three-year period. The Family Law Act also states that couples can be engaged in a common-law relationship if they have a child together by birth or adoption and cohabitate.

Although common law is a legally recognized form of partnership, those in common-law relationships do not have the same legal rights and privileges as couples who enter marriage. Employment benefits and perks do not always extend to common-law partners. Formally married couples can inherit assets from one another if a spouse passes away without a will.

Another stark difference between common law and marriage becomes apparent when a couple wants to separate. Common-law relationships are flexible. There is no legal outline that governs formally ending a common-law relationship. Canadian tax law indicates that a common-law partnership is over when a couple experiences a breakdown in their relationship for at least 90 days, and the partners voluntarily live apart due to that breakdown.

The separation between legally married couples is much more complex. Formally married couples must file for divorce to dissolve their marriage.  Common law couples don’t have to file any specific paperwork to dissolve their relationship.  They also have different rules for dividing their assets.

The biggest difference between common-law relationships and marriage is the ability of partners to equalize property. Following separation, married partners automatically have a right to apply to equalize their family properties. This means there is a right for the spouses to share in the value of property whereas common law partners do not automatically acquire this right. Under the Family Law Act, the net value of all property acquired during the marriage may be divided equally between spouses. However, common-law partners are not automatically entitled to an equalization payment when separating.   In general, the starting point is that common law couples keep whatever assets and debts are in their own name.  However, common law spouses may apply in equity to secure a portion of the value of the assets in the other partner’s name.    Equitable claims are complicated and expensive to pursue and defend.  May common law partners are shocked to learn that their partner may be entitled to make a claim against their property.

Married spouses also have the right to choose to live in the marital home after separation, no matter which spouse is the legal owner of the property. Neither spouse can sell their shared home without the other’s consent, regardless of ownership. However, common-law couples have no such legal rights. Living in or selling a home in a common-law relationship depends on the ownership of the property.

Another difference between marriage and common law is the right to share or inherit property. If a spouse dies without a will, intestate succession rights allow the surviving spouse to inherit their partner’s estate. Common-law partners are not guaranteed the same protections. Interstate succession rights generally do not apply to common-law partners. For a common-law partner to inherit property or assets, the partner must stipulate the division of their assets in a will.

There are pros and cons associated with both forms of partnership. To determine which path is right for you and your partner, you need to discuss what you hope to achieve together in your relationship. Is a formal declaration important to you both? What about the potential incentives offered to legally married couples in the form of potential tax and insurance benefits? Do you value flexibility and want to avoid jumping through hoops to become a couple? Only you and your partner can answer these questions and arrive at a relationship agreement that works for you.

Whatever option you choose, you should always consider a Cohabitation Agreement (for Common Law Couples) or a Prenup Agreement (for Married Couples) so you can outline exactly what happens to your assets and debts in the unlikely event you separate.

Do You Need a Lawyer to Help You Separate?

Common-law relationships and married couples do have one thing in common. If you decide to separate from your partner, you need the help of a compassionate and experienced lawyer to resolve your situation. Dividing assets and arriving at a parenting agreement can be challenging. Coming to a mutually beneficial arrangement takes time, patience, and an experienced lawyer to help protect your rights along the way.

At Musson Morneau LLP, our legal team can help individuals resolve a separation no matter what type of legal partnership you have. Dissolving a common-law relationship can be challenging because there is no solid legal outline for dividing assets, and common-law couples do not have the same rights as legally married couples. Formal divorce may present unique difficulties because of the complexities of the Canadian legal system.

Protect yourself and your family. Whether you are separating from a spouse or a common-law partner, put your trust in an experienced and sensitive family law lawyer with Musson Morneau LLP.

Contact an Experienced Family Law Lawyer to Discuss Your Unique Situation

At Musson Law, we want to reinvent divorce by taking a more collaborative approach to dissolving your partnership. We help you maintain crucial relationships and facilitate solutions that benefit you and your family. The result? You work with a compassionate team who focuses on reducing the time it takes to arrive at a mutually agreeable arrangement with your partner.

If you have questions about separating from a common-law partner, discuss your unique situation with a skilled family law lawyer at Musson Law. Contact our office today to get started and find out how we can help you through this challenging time.

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