What is the Difference Between Common Law and Marriage?

August 25, 2020 Blog No Comments »

If you are in a long term, committed relationship with your significant other, then you may view marriage as just a formality or as a piece of paper. But if your relationship were to dissolve some time in the future, you will find that the difference between marriage and common law becomes quite important in regard to your rights, responsibilities, and division of assets.

Marriage vs. Common Law

Let’s start by distinguishing the legal difference between marriage and common law.

  • Marriage is when you and your spouse have gone through a legal marriage ceremony including the signing of your marriage certificates.
  • Common law spouses are those who live together but have not been formally married.

When does the law recognize couples as common law?

Ontario law recognizes common law couples as spouses (meaning they have mutual legal obligations in two scenarios:

  • They have been living together continuously as a couple for a minimum of three years.
  • They have been living in a “relationship of some permanence” for any length of time AND also have a child together.

Financial Support

In terms of spousal or child support, there is really no difference between couples who are legally married and those who are common law. Couples are legally required to support each other and their children as long as they are living together and as dictated by the court after a separation.

Child Access and Custody

As with financial support, common law couples have the same rights and responsibilities toward their children as married couples. Unless there is a court order which stipulates otherwise, all parents have the same duty to care for and the same right to have access to their children regardless of the form of their spousal union.

Property Division

On the issue of property division, there is actually quite a big difference between couples who are legally married and those who are common law.

For legally married couples who split up, there is very clear legislation on how their property is to be divided.

With common law couples, there is no statute and therefore the dividing of property can become much more complex. To determine what is fair, courts will look at a number of factors including how long the couple was together as well as how much each has invested (financially or otherwise) in their mutual property. This could result in one partner receiving a greater share of the property than the other in order to reach a result that is fair.

The one area, in the division of property between common law partners where the law is clear, has to do with the ownership of the house. In cases of a common law separation, the home always goes to the title holder. This is much different than the case of a legally married couple which automatically entitled both partners to a share in the family home.

Contact me today if you need legal advice.

If you are unsure how your relationship status affects your legal rights and responsibilities and you would like legal advice on the matter, I can help. Contact me today for a consultation.

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