Canucks who shack up rather than gettin' hitched

August 16, 2006 12:39 PM

What are the differences between common-law and marriage in Canada? Ontario?

I'm wondering what the downfalls are to just living together forever and ever, aside from social pestering. What I know so far (which may or may not be correct):

- property gets divided differently if you break up (marriage: divide assets acquired during marriage 50/50; common-law: take what you paid for)
- children: no difference, these laws are based on rights of the child, not marital status of the parents
- death of partner: if there's no will, spouse still gets something, common-law partner gets nothing

How about insurance? Pensions? Medical rights? Taxes? Things I'm not thinking of?

And if it takes 3 years to become recognized as common-law, what is your status in the meantime? Should cohabiting couples who have been together less than 3 continuous years have a legal agreement of some sort?

I had suspected that I could find this type of information on various same-sex marriage advocacy pages, since they would be upset at being barred from such rights for so long, but I can't seem to find much Canadian info.

I've seen this question about why people get married, looking for more specifics.

posted by heatherann to human relations (5 comments total)

In my personal experience:
Pensions, Taxes, Work Health benefits - No difference, you can nominate common law or state approved spouse.

In my speculation:
I have no experience with breaking up a common law marriage but I'd bet that things are moving towards being the same. If you put someone through law school and you are common law married then you still can collect alimony. I don't see how it would be defensible to differentiate between a state approved and common law marriage.

Note: If you have a child together and live together for one year, this speeds up the common law marriage thing to be only one year in Ontario.

If you have not been together for 3 years and suspect someone is going to leave then take it as a dating experience. If substantial finances are changing hands, then sign a contract but keep it separate from marriage.
posted by FastGorilla at 1:04 PM on August 16, 2006

Taxes:
The feds consider you 'common-law' once you've lived together in a conjugal relationship for 12 consecutive months, or have a child together & co-habit for any period of time, which ever is first. Once they consider you common-law, there is no tax differences between common-law married and has-a-certificate married. That's why every tax form and related document says "spouse or common law partner". They're effectively the same. Go to the source.

If you don't have a marriage certificate, it's easier to lie to them and claim as two single people (often tax advantageous) but that's tax evasion and not at all advisable.

Where do you get this '3 year' thing? I have a common law spouse and have yet to encounter a situation where it was 3 years before we were recognized as a couple. So far, everything I've encountered (pensions, life insurance, banks) has recognised us as common-law spouses - equivalent to married - the same way that Canada Revenue Agency does.
posted by raedyn at 1:17 PM on August 16, 2006

(After some googling, it seems the 3 year rule may apply at the break up of a common-law relationship where there are no children involved. Since I haven't ended a co-habiting relationship, this is probably why I hadn't heard this)

Here's a primer on what happens on the death of one common law spouse, put out by the Canadian Bar Association - BC branch. Seems a reasonably reliable souce.

I imagine the answers will vary some depending on your province.
posted by raedyn at 1:27 PM on August 16, 2006

He gets that '3 year' thing from the Ontario Family Law Act:

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6).

when discussing support obligations between spouses.

I'd say this is one thing where you really want to talk to a lawyer, or at least a law student who will know what to read and how it has been interpreted by the courts in the past. Or, at least, I think you'd be nuts to take any steps based on the understandings of strangers on the Internet.

While marriage is a federal matter in Canada, all of the elements that involve marital status aren't, so the experiences of people outside of Ontario won't necessarily apply to you -- and it will be an Ontario court making decisions about separation, children, and divorce.
posted by mendel at 1:40 PM on August 16, 2006

From raedyn's link I found a booklet put out by the Legal Services Society of BC, Living Common-Law (pdf).

Lots of the issues are discussed, with some things specific to BC, but I imagine a lot of it is applicable to Ontario as well. The booklet included info on things I hadn't thought of as well.
posted by metaname at 2:14 PM on August 16, 2006