To Marry or Not to Marry – A Family Law Perspective

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This lecture explains the commonalities and differences between married and common law couples with respect to their treatment under family law.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

Each couple may decide to marry or live in a common-law relationship based on their personal preferences and personal beliefs—but the law may treat each couple differently based on the nature of their relationship. In this lecture we will explain the commonalities and differences between a married couple and a common-law couple.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal are the Law Society of Ontario for a referral.

Married versus Common-law partners. What are some of the rights that are the same?

1. Number one child custody;
2. Number two child access; and
3. Number three child support;

It does not rather matter whether you’re married or you are common-law, as long as you have children together the custody access and support issues are dealt with in the same manner—makes no difference. The applicable law with respect to custody and access and child support may be different. For a married couple, they have a choice of choosing between federal laws or provincial laws but with respect to common-law partners the only law that applies to their circumstances is the provincial law. One of our previous lectures explains that.

What are some of the rights that are different?

1. Number one is property and debt: For a married couple they share the value in all of the property and debt and this process is called ”equalization” payments. There is a whole formula for this which we will explain in future lecturers. All of the debts, all of the property and property is not just the house property could be anything – car, furniture, computer, any assets that you may have—are all considered property. Similarly, debt doesn’t matter whether one partner has a credit card debt and the other doesn’t—it does not matter. All of the property and debt is pooled together and that’s where the share of the value between the 2 partners (married couple) is decided.

That could be different in circumstances where there is an agreement between a married couple which could be a marriage agreement or cohabitation agreement and as long as that agreement does not violate statutory rights then, that agreement will be enforced.

With respect to common-law partners, the principle is pretty much straight forward—to each it’s own. If you own a property in your name, that’s yours to keep. The other partner has no rights in that property. Then again if the property is owned jointly, of course, the law will apply and the rights will be based upon your share in that property. The same applies to debt. If the debts have been accumulated separately, then the person who has that debt is liable. The other partner is not.

The property and debt: Even if a common-law couple living in a rental apartment, if only one person has the name on the lease then that person will have the right to stay in that apartment and the other person will not so. The application of the law is pretty straightforward with respect to common-law couples.

2. Another place where the rights would be different is the family home, also called matrimonial home. Married couples have equal rights to stay in the family home and then have the right to claim a share in the value—again equalization payments—that is the entitlement for a married couple. For common-law again to each its own. If you don’t have a share in that property; if it’s not joint; then the person who owns that family home is the person who will keep it.

3. Another kind of right which is different is inheritance. If a married partner dies without a will, then there are specific rules which will automatically entitle the surviving partner (surviving married partner) to certain rights. That is not the case in common-law. There is no automatic right of inheritance if a common-law partner dies without a will. It is important to note the distinction.

There are circumstances in which the surviving partner (common-law partner) may be able to claim certain rights and inheritance but it’s a complicated area. It’s hard to prove but it can be done. The point is it can be done in certain circumstances. But what you want to remember is that there is no automatic right to inheritance when the partner has died without a will.

There are some rights that can be “same”. It depends upon the circumstances of common-law partner and the rights could be the same.

1. Number one is spousal support: As we know a married couple can claim spousal support either directly or through a court. Common-law partner can claim spousal support only if they have lived together as a couple for at least 3 years. That’s in the province of Ontario. I believe other provinces may have different time periods for staying together but in Ontario it is 3 years. If you have lived together for 3 years, only then you can claim spousal support otherwise not.

2. Or if the common-law partners were in a relationship of some permanency for any length of time and had a child together. If you had a child together and the nature of relationship was of some permanence regardless of the time period then you may claim spousal entitlement. With respect to spousal entitlement, one point that you want to remember is that once a common-law partner is entitled to spousal support based on these conditions, then the duration of spousal support or the amount of spousal support does not differ. It’s not a scenario where if a married couple is entitled to spousal support he or she will get more money and then the common-law would get less. Or vice versa. No, that makes no difference as long as a partner can qualify, then length and time period has its own rules and it doesn’t matter whether you’re married or common-law.

3. Welfare and disability benefits can also be the same depending upon the circumstances. If a couple is married, then if they are applying for assistance or disability benefits their combined income is considered in deciding what is the assistance that they will receive. In common-law their combined income is considered only if they have lived together for at least 3 months (not 3 years), 3 months they have shared finances and lived in a marriage like relationship.

4. Immigration sponsorship: As we know a married person can sponsor the other married partner to come and become a Canadian citizen. Common-law spouses/partners can sponsor only if they have lived together for at least one year or they can prove that they were conjugal partners and conjugal partners is a specific term that will be interpreted according to the immigration statutes that apply.

5. With respect to health care decisions, if there is no power of attorney for personal care then a married partner is the substitute decision-maker for the other partner who may not have / who does not have the capacity to make his or her own decisions. In those circumstances the married partner is the substitute decision-maker. In common-law relationships, absent the power of attorney for personal care, the common-law partner is a substitute decision maker only if they have lived together for at least one year or have a co-habitation agreement or have a child together. In one of these scenarios the common-law partner will be the substitute decision-maker when there is no power of attorney.

What you want to carry from this lecture is that it is important, whether you want to marry or not, for you to understand the legal implications of each kind of relationship so that you know how the law will treat your relationship if you ever have a situation that you have to rely on the legal framework.

Thank-you for watching.

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