Common Law Marriage
People living in a common law marriage are not considered married under Canadian law. However, when their relationship ends, many of their rights are the same as for people in a regular marriage. There are also many important differences.
To be considered a common law marriage, the couple must live together a certain period of time. The amount of time varies from province to province, as this is covered by provincial legislation, but is generally two to three years. For instance, in Ontario and New Brunswick, the period is three years. In British Columbia and Nova Scotia, the period is two years. To complicate matters further, Federal legislation often specifies a different period for a relationship to be considered a common law marriage for federal law purposes – normally only one year. Some provinces, such as Ontario, also consider a couple to be in a common law marriage if they have a child together and are living together, regardless of the length of time that they have lived together.
A common law marriage can be either between people of the same sex or opposite sex; it does not make a difference for legal purposes.
Rights and obligations regarding children are the same for both common law marriages are regular marriages. This is because the law looks at things from the point of view of the children, and from their point of view, it doesn’t make much difference whether their parents went through a formal marriage ceremony. So, when a common law marriage ends, child support and child custody are determined in the same way as in a divorce. As well, the law regarding adoption proceedings, dependants relief and surnames is the same for both married and unmarried couples.
Other rights relating to common law marriages differ from those of married couples. If you are in a common law marriage, you do not need to obtain a divorce or take any other legal proceeding to end your relationship.
There is no automatic right to the division of property when a common law marriage ends. Often there is no division of property, and each party takes what is in his or her name. If this is a greatly unfair result, the spouse who was treated unfairly can make a claim for unjust enrichment, but this is a difficult and expensive legal claim to make.
If your name isn’t on the matrimonial home and you are in a common law marriage, you have no right to stay there when your relationship ends, unlike in a regular marriage.
You have to have lived with your spouse long enough to be in a common law marriage (generally two to three years, depending on the province) to obtain spousal support. Married couples get this right automatically upon marriage.
If one spouse in a common law marriage dies without a will, there are no automatic inheritance rights for the other spouse.
If your common law marriage is ending, much of the information on our website is still helpful. However, you will need much more information, as the law regarding your situation is complex. For this reason, we have developed a separate website to deal with the end of a common law marriage.
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If you are considering divorce -- or have already made your decision -- you're invited to call me at 613-519-0320 or email me on my contact form. I'll explain how you can protect your legal rights, reduce the expense of divorce, and protect your children from undue emotional stress.