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Cohabitation and Marriage Contracts

What is the difference between marriage and common-law relationships?

You’ve found the person you want to share your life with, and now you’re faced with a decision. Should you get married or live as common-law spouses? Many common-law couples believe that after they have been living together for a certain period of time, they will be treated the same as married couples, but there are significant differences between marriage and common-law relationships. You should consider these differences carefully before making your decision.

What is a marriage?

A marriage involves certain legal requirements, and is performed by an authorized officiant. To get married in Ontario you need to be at least 16 years old, and if you are under 18 years old, consent from both parents. Before you get married you need either a marriage license or a ‘banns’ form that you receive from a church when you are married. If you were divorced, you will need to bring official proof of the divorce when you apply for your marriage license. A marriage certificate is the legal record of marriage, which is required for a number of reasons including applying for certain social benefits, settling an estate and changing your last name. In order to obtain a marriage certificate, your marriage license needs to be registered by the officiant who performed your ceremony. Being married provides you and your spouse with certain legal rights and benefits as well as obligations.

What is a common-law relationship?

There are many types of common-law relationships. Common-law relationships are not defined the same way in all jurisdictions or by every law, so you could be considered common-law for one purpose and not for another. For example, for federal income tax purposes, a common-law partner is a person you have been living with in a relationship that has lasted at least 12 continuous months, or a person who is the parent (by birth or adoption) or has custody of your child. For Ontario family law purposes, spouses include two people who have cohabited continuously for at least three years, or are in a relationship of some permanence if they are the parents (by birth or adoption) of a child. Family laws also differ from province to province, so if you are living in a common-law relationship or cohabiting, you should look at the laws that apply in the province where you live.

What is the difference in Ontario between a marriage and a common-law relationship?

For many purposes, common-law couples are treated in similar ways as married couples. But for other purposes, such as spousal support and property sharing, common-law spouses are treated very differently than married spouses. Some of the most significant differences are outlined below.

Spousal Support: Married spouses are automatically eligible to seek spousal support upon separation

  • When married spouses separate, they are automatically eligible to apply for spousal support from their former spouse; regardless of how long the marriage lasted, unless they entered into a marriage contract that provides otherwise. However, this just means that a married spouse can claim it. It does not mean they will be entitled to support. That is something he or she would have to prove based on a number of factors. Common-law couples only have support obligations to each other after they have lived together in a conjugal relationship for at least three years, or if they have not lived together for three years but they have a child together. This means that unmarried couples cannot apply for spousal support unless their relationship has passed the required threshold.

Sharing Property: 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 net value of all property acquired during the marriage is divided equally. This rule is subject to several exceptions however. Married spouses can opt out of the automatic entitlement to an equalization payment by entering into a cohabitation agreement or marriage contract. Common law spouses are not entitled to an equalization payment. In some circumstances, common law spouses may have acquired rights to share property acquired by the other spouse during the relationship; however, there is no automatic entitlement for a common law spouse to share property upon separation.

The Family Home

  • When married spouses equalize their property, they are not allowed a credit for the equity they bring into the marriage for a home owned before their marriage if that is still the “matrimonial home” at the time of separation, unless a marriage contract provides otherwise.
  • Married spouses also both have the right to live in the matrimonial home after separation, regardless of who is the actual legal owner and neither spouse can sell or dispose of the matrimonial home without the consent of the other or a court order regardless of legal ownership. Common-law couples do not have such rights, and their rights to possess and sell a family home are governed by ownership.

Wills and Estates: Common-law spouses are not automatically entitled to share in their spouses’ estate

  • In Ontario only married spouses have a right to share in the estate of their spouse if their spouse dies without a will. These are called ‘intestate succession rights’. If a married spouse passes away, the surviving spouse is either entitled to their entire estate, or if they have any children, the surviving spouse is entitled to the first $200,000 of the estate, and half to one third of the remainder of the estate depending on how many children they have together. Alternatively, a spouse who was married could apply for an equalization of net family property after the other spouse’s death. It is important to know that wills made prior to marriage automatically become void upon marriage. The only exception to this is a will specifically made in contemplation of the marriage. If you get married, you need to make a new will.
  • Common-law spouses do not have intestate succession rights and cannot apply for an equalization of net family property after their spouse’s death. Their rights to share in the estate are strictly governed by a valid will.

Do I need a marriage contract or a cohabitation agreement?

It’s a good idea to talk with your spouse about financial expectations before living together or getting married. If you decide that you want your rights and obligations to be different from those that automatically apply to married or common-law spouses, then entering into a domestic contract may be right for you. Common-law spouses can enter into a cohabitation agreement that specifically outlines what rights and obligations they will have to each other. Married spouses can opt out of the automatic rights and obligations by entering into a marriage contract. If you are already married and do not have a marriage contract, it’s not too late. You can sign a marriage contract after you are married.

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