There is a common misconception that the only difference between common law and married spouses is a “legal piece of paper”. The reality is the treatment of common law spouses is very different from that of married spouses in many significant ways.
The starting point is to clarify the use of the words “common law” and “cohabitation”. Cohabitation is defined as persons living together in a conjugal relationship whether within or outside marriage. As such, the word “cohabitation” can be used in reference to married spouses.
Common law spouses, generally speaking, are two persons who having been living together in a relationship of permanence for a period of three (3) years or have been living together in a relationship of some permanence and have a child. There are several types of common law relationships and several factors that the Courts consider when determining if parties are, in fact, in a common law relationship. The factors that assist in the determination of whether a common law relationship exists include a determination of whether or not the parties lived together in the same premises, questions about their sexual relationship and whether or not it was exclusive, questions as to support for each other as a family (physically, emotionally and financially) and if they represented themselves as a couple in social circumstances. No one factor is determinative.
Custody and Access
There is no difference between the treatment of common law and married spouses in the context of children and the rights of a parent. Custody and access focus on the best interests of the child and the respective parents’ ability to make appropriate decisions, foster a relationship between the child and both parents, and meet their emotional, mental and developmental needs.
Child support is considered the right of the child and stems from a determination of the incomes of the parties and the quantum as determined on a monthly basis by the Child Support Guidelines. The amount of support is also dependent upon whether the children reside primarily with one parent or, as is increasingly the case, if the parties have a shared parenting regime.
Section 29 of the Family Law Act defines “spouse” for the purposes of support that is payable by one party to another arising out of their common law relationship. Once a party has been deemed to be a spouse, namely that they cohabited in a continuous relationship for a period of not less than three (3) years or they were in a relationship of some permanence if they are the natural and/or adoptive parents of a child, they are eligible for a determination of spousal support.
There are different types of spousal support and the quantum and duration depends on several factors, including but not limited to: the ages of the parties at separation, the length of their relationship, if they have children, standard of living, the health of the parties, sacrifices made during the course of the relationship and the ability of the recipient to become self-sufficient.
When married parties separate they are entitled to seek a division of assets and to equalize their net family property. The equalization of net family property is when the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.
Unlike a married spouse, a common law spouse has no right to seek an equalization of net family property. Each person keeps what is in his or her name and joint property is shared equally or in accordance with the percentage allotted to each individual (as may be the case with parties who are on title as tenants in common).
There are some legal remedies which relate to properties where the “division” of property is not satisfactory as is most commonly the case when the parties reside in a home where title is held in the name of one person. Such claims to property can be made by application of the legal principles of unjust enrichment, joint family venture and constructive/resulting trust arguments.
The matrimonial home is the ordinary residence and family home of spouses who are married. It is given special treatment for property division purposes where the parties are married. Married spouses also have special possessory rights and one party can remain in the home regardless of which spouse is on title.
However, the family home is treated like any other property in the context of common law spouse separation, which means that when a relationship ends, whoever is on title gets the home subject to common law property claims. Furthermore, possessory rights do not apply to common law partners. For common law partners, a spouse only has the right to remain in the home if their name is on title and therefore the title provides some possessory rights. There are no possessory rights that apply to common law spouses arising solely from their relationship.
It is important to understand the distinctions between common law and married spouses and while the information provided above is general in nature, the unique circumstances of the parties and their relationship will dictate the outcome of the legal remedy sought.
Lenkinski Family Law
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