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Think marriage and common law relationships are the same? They are not, and here’s why. We’ve outlined our top five differences between marriage and common law relationships in this post.

  1. Only married spouses are entitled to an equalization payment

After separating, married spouses can apply to equalize their respective net family properties under the Family Law Act. The general rule is that the value of any property acquired during the marriage is divided equally. This rule is subject to several exceptions, and you can read more on equalization here. Married spouses can opt out of the automatic entitlement to an equalization payment by entering into a cohabitation agreement.

Common law spouses are not entitled to an equalization payment. In some circumstances, common law spouses may have acquired rights to share property pursuant to equitable claims of unjust enrichment and joint family venture, however there is no automatic entitlement for a common law spouse to share property upon separation.

  1. Common law spouses are not entitled to share in their spouses’ estate if they die intestate, unlike married spouses

If you are married and pass away, your spouse is either entitled to your entire estate, or if you have a child or children, your spouse is entitled to a preferential share (which is the first $200,000 of your estate and 1/2 to 1/3 of the remainder of the estate). Alternatively, if you were married, your spouse could apply for an equalization of net family property after your death.

In contrast, if you are not married, your common law spouse is not entitled to any portion of your estate if you die intestate, and he or she cannot apply for equalization of net family property. Your spouse may be able to obtain some relief pursuant to the Dependant’s Relief sections of the Succession Law Reform Act, however they will not have any automatic entitlements. You can read more on the effect of dying intestate here.

  1. Common law spouses are not entitled to exclusive possession of the matrimonial home

Married spouses both have the right to live in the matrimonial home after separation, regardless of who is the actual legal owner. Neither spouse can sell or dispose of the matrimonial home without the consent of the other, as a result of their right to live in the home. In some circumstances, married spouses who have separated can apply to the court for exclusive possession of the matrimonial home, which allows one person to remain in the home and exclude the other, regardless of ownership.

Common law couples are not entitled to rely on the provisions in the Family Law Act which provide for possession of the matrimonial home. Read more about the matrimonial home here.

  1. Married spouses are automatically eligible for spousal support upon separation, unlike common law partners

When married spouses separate, they are eligible for spousal support upon separation, regardless of how long the marriage lasted. If the marriage was short, he or she may not actually be entitled to spousal support, or the quantum of support might be $0, however, the party is still eligible to bring an Application.

Unmarried couples only qualify as ‘spouses’ under the Family Law Act once they have resided together for 3 years, or earlier if they have a child together. This means that unmarried couples cannot apply for spousal support unless their relationship has passed the required threshold.

  1. Decision Making & Health and Death Benefits

Common law spouses in particular should ensure that your Powers of Attorney for Personal Property and Personal Care are current so that your spouse has the authority they may need if you become incapable. Otherwise, your spouse may not have authority to act on your behalf.

Whether or not you are married may also impact your ability to claim health benefits and your eligibility for pension and death benefits. Unfortunately, the impact varies from plan to plan. You should review your relevant plans to ensure that your spouse is covered the way you expect.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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