In Ontario, family law distinguishes between married spouses and common law partners, as each relationship has their own unique legal rights and obligations, especially upon separation. Many assume that the legal implications for common law couples and married couples are the same, however, this is not the case.
Definition and Establishing the Relationship
Married Spouses
Marriage in Ontario is a legally formalized union recognized by both provincial and federal laws. Married spouses are governed by the Divorce Act and the Family Law Act. Marriage grants specific legal rights and responsibilities, and is a registered union with the government.
Common Law Spouses
Common law partners are those who live together in a conjugal relationship without being legally married. In Ontario, a common law relationship is typically recognized after cohabiting for at least three years or if they have a child together and maintain a relationship of some permanence (generally, one year). The Family Law Act applies to common law partners, though some rights and obligations differ from those of married couples. There is no formalized process to recognize a common law union, it simply is based on the facts of the relationship.
Property Division Upon Separation
Married Spouses
Married spouses have a presumptive right to share in and divide the property growth of the other, with a few narrow exceptions. Ontario follows an “equalization of net family property system” for married couples, governed by the Family Law Act. This means, upon separation or divorce, spouses are entitled to an equal share of the increase in the value of their combined property during the marriage. Net family property is calculated for each spouse, and the spouse with the higher net worth compensates the other to ensure a 50/50 split.
Common Law Spouses
This is an important distinction from married couples: common law couples have no presumptive right of property sharing upon relationship breakdown. There is no written law that guarantees that common law couples can divide property between themselves. Common law partners do not benefit from the same property division rules as their married counterparts.
Instead, if a common law spouse wants to claim property division from the other, these claims are governed by principles of unjust enrichment, constructive trust and other equitable remedies. These are complicated claims, based on principles of fairness as opposed to an automatic right. These remedies typically require legal advice and third-party intervention from a mediator and/or the Courts, as they are complex legal arguments.
Spousal Support Upon Separation
Married and Common Law couples have relatively similar rights when it comes to making a claim for spousal support. The underlying principle is the same: spousal support aims to address economic disadvantages resulting from the relationship. The right to spousal support is governed by the Divorce Act (for married couples) and the Family Law Act (for married and common law couples).
Factors that determine spousal support include an analysis of factors such as the length of the relationship, roles during the relationship, and financial needs and abilities upon separation.
Custody, Parenting Rights and Child Support
Custody and child support for both married and common law spouses are governed by the same principles. The Children’s Law Reform Act and Family Law Act focus on the best interests of the child, ensuring that parenting responsibilities and support obligations are handled consistently. Child support and amounts each party must contribute towards the financial support of children are also the same, as governed by the Child Support Advisory Guidelines.
Marriage Contracts (aka Prenuptial Agreements) vs. Cohabitation Agreements
Marriage Contracts and Cohabitation Agreements serve similar functions, in that typically parties enter into them trying to protect assets, or provide predictability about how assets will be divided and finances will be handled upon relationship breakdown. However, as can be seen from above, as Married and Common Law couples have different legal entitlements, these agreements need to be structured differently.
Both agreements can be entered into prior to, or during the relationship. Both agreements should begin with Financial Disclosure. Ideally, both parties entering into an agreement should have Independent Legal Advice, but this is not necessary to creating a binding agreement.
As Married couples have an automatic entitlement to property division, the Marriage Contract must be structured to address this entitlement specifically. The need for Financial Disclosure is critical, and the agreement should be signed well before any marriage date to avoid situations where parties are signing away their rights hastily, or while under the pressure of an imminent wedding date.
Conclusion
While Common law and Married spouses experience many similarities in their day-to-day functioning, important legal differences exist in Ontario and reflect their distinct legal statuses. Understanding these distinctions is crucial for protecting one’s legal rights and ensuring fair outcomes in family law matters. If you would like to explore the options of a Marriage Contract and/or Cohabitation Agreement, or have any questions about your rights, entitlements or obligations as a Married or Common Law spouse, contact our Family Law Team at Mills & Mills to set up a consultation to discuss your matter.
At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, real estate law, estate law, employment law, health law, and tax law. For over 140 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.
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