What are the Differences between Common Law and Marriage?

Both common law relationships and legal marriages are known as a form of partnership. However, they are different in terms of the legal implications. Starting from property rights to taxes, there are vital differences between common law and marriage that can affect one’s future upon separation. 

So, it is important to know the differences between common law and legal marriages when deciding which path is best according to personal and financial goals. To give you a clear idea of each of these, we break it all down in simple terms in the following blog. 

What is a Legal Marriage?

In Canada, a legal marriage is a formal union of two people that is recognized by law. It is the federal government that defines this marriage. On the other hand, the solemnization process varies according to different provinces and territories. This includes getting the marriage license and having an officiated ceremony by an authorized individual. 

What is a Common Law Relationship?

A common law relationship is when a couple lives together without being legally married. Such relationships are recognized based on different criteria in different jurisdictions. For example, under Ontario’s Family Law Act, a couple is recognized as common law if they have lived together for at least three years. They also get recognized if they live together and have a child together. 

Key Differences Between Common Law and Marriage

There are some key legal differences between common law and marriage. Some of them are:

Legal Recognition

Legal marriages get universal recognition all over Canada. This provides spouses with a specific set of rights and responsibilities. On the other hand, common law relationships are recognized differently based on the jurisdiction the couple is in. This will lead to having different sets of rights and obligations. 

Property Rights

In case of separation, married couples will receive an equal share of their overall family property. This includes any assets received during the marriage, which will be divided equally regardless of who owns them. 

However, in the case of common law separation, the partners do not have the automatic right to equal property separation. Rather, they must go through a complex legal process to seek any share of assets. 

Spousal Support Obligations

Both married and common-law partners can get spousal support in case of separation. However, for common law partners to be eligible for this, they need to live together for a specific amount of time or have a child together. Moreover, the amount and duration of the support to be received are based on things like the length of the relationship and each individual’s financial situation. 

Inheritance and Estate Rights

If a partner dies without an established will, then married spouses will automatically get inheritance rights. This is not the case for common law partners. They will not get any inheritance unless it is specifically mentioned in the will. They can apply for support from the estate, but it is only under specific conditions. 

Taxation and Government Benefits

For tax-related things, common law partners are treated similarly to married couples. But this is only if they meet the cohabitation requirements. If they do, then common law partners can claim spousal credits as well as benefits. Moreover, their combined incomes will be considered for numerous government programs. However, the eligibility requirements and benefits may vary. 

Ending the Relationship: Divorce vs Separation

If married couples want to end their relationship, then they must go through a formal divorce process to legally end it. This involves legal proceedings, and in some cases, the court is also involved. In contrast, common law partners can easily separate without any legal formalities. But sometimes, they may need to resolve issues like property division and spousal support. 

Similarities Between Common Law and Marriage

Despite having legal differences, common law relationships and marriages in Canada share several similarities. A few of them include:

Shared Parenting Rights

Despite a couple’s marital status, both parents will have equal rights and responsibilities regarding their children. Both common law partners and married couples will decide child custody and access depending on their child’s best interest. 

Impact on Government Benefits

There are many government benefit programs where both married and common law partners are treated the same. In such cases, their family situation is considered to determine how many benefits they are eligible to receive. 

How do Different Provinces Treat Common Law Relationships?

Common law relationships are treated very differently in different provinces. For example, in British Columbia, common law partners have similar property rights as married couples. However, for this to be valid, they need to live together for at least two years. 

On the other hand, Ontario does not give common law partners any automatic property rights if they separate. Such differences highlight how important it is to know the specific legal standards in specific provinces. 

What to Consider When Choosing Between Common Law and Marriage?

If you are thinking about taking the next step with your partner and are confused between common law and marriage, here is what to consider:

• Marriage offers a wife a range of legal protection in case of separation, such as property and inheritance rights.
• There is more flexibility in common law relationships in terms of entering and ending the relationships. However, it will lack some legal protection.
• You should evaluate how each arrangement affects your benefits, taxation, and other support requirements. 
• Regardless of what you choose, you should think about drafting legal agreements and outlining expectations to protect both parties in the long run. 

Conclusion

In conclusion, you need to know that common law relationships and legal marriages differ in Canada. They have unique legal implications that can affect various aspects of your life. This includes property rights and parental responsibilities. Knowing about both common law relationships and legal marriages will guide you toward making a solid decision about your partnership.

FAQs

If a couple lives together, will they be automatically considered common law?

Not necessarily. To be considered as common law, you need to meet a certain cohabitation requirement and if you have children together. Federally, you will be automatically considered as common law after 12 months, but provincially, it differs. 

Do married and common law couples get the same tax benefits?

Yes. For most of the federal tax purposes and governmental benefits, both married and common law couples are treated similarly. However, common law couples need to meet cohabitation requirements. 

Are property rights the same for common law and married couples?

No. In the case of property rights, married spouses will get equal property division if they get a divorce. However, common law partners will need to go through a broad legal process to claim a share.