Debating Getting Married? Read this first

Whether you’ve been married once before, or just don’t see the need for a big ceremony, more and more partners are choosing today to cohabitate without legally getting married. Recent statistics show that almost 25% of Canadian couples who live together are unmarried – the highest of any G7 nation.

The truth is that, even if the stigma is gone, cohabitation and legal marriage are not the same thing at law. There are some aspects where marriage and common-law are similar (support payments) and others that contain significant differences (property). Here’s a quick walk through of how it works, and some things to be aware of:

What are cohabitation and common-law, legally speaking?

There’s a common misconception that if you’ve lived with your partner for long enough, then legally you’re as good as married. That’s simply not true.

In Ontario, if you have been living with someone in a conjugal relationship for three years then you are legally considered common-law. If you have a child with that partner and have a ‘relationship of some permanence’, whether through birth or through adoption, the time period shortens to one year. While common-law does have some legal protections, it is not a marriage.

To be legally married, you need to go through a civil or religious ceremony with your partner (sex and gender are irrelevant) by someone who is legally allowed to perform marriages – a judge, justice of the peace or city clerk, or a religious official. A friend can perform a backyard ceremony, but it is not legally binding without a separate, legal ceremony performed by any of the above.

How are common-law and legal marriage similar?

There are certain things that don’t change whether you’re in a common-law marriage or a legal marriage.

The primary responsibility that does not change is support. Whether you are obligated to pay spousal support or child support, your financial duty to your dependents (spouse, children) exists whether or not you were legally married. The law treats these relationships similarly.

Along with child support obligations comes access – parenting time and decision-making responsibility for any children that you share. Your rights as a parent do not change depending on whether you were legally married or not – you still have the same right to access (now known as parenting time) and to custody (decision-making responsibility), unless you agree otherwise in a Separation Agreement.

How are common-law relationships different?

When you end a common-law “marriage,” there is no formal separation and divorce process like there is in a legal marriage. It also means that your property is not divided in the same way, and this usually comes into play when it comes to the home that you both share.

In a legal marriage, the value of the matrimonial home is calculated and usually divided evenly between the parties, whether one spouse buys out the other’s interest to let them keep the home, or whether they sell the home and divide the profits. In a common-law marriage though those requirements simply do not exist.

That does not mean that someone leaving a common-law relationship needs to leave empty handed; it just makes things a bit more complicated…

What is a constructive trust?

Even though common-law relationships do not trigger an automatic division of property, this does not mean that the role of former partners in acquiring or maintaining their property goes unrecognized by the law, and that they should not ultimately benefit from their contributions.

There is a legal remedy known as a ‘constructive trust’; for example, where a former common-law spouse can prove that their contributions enriched the couple’s property to their own personal detriment, or enriched the value of their home, the court can award that former partner either money or a portion of the value of the home.

The legal tests for trusts can be hard to meet, but even if a case does not meet these specifically, a lawyer can still argue what is called ‘unjust enrichment.’ In other words, your efforts during the relationship improved the other person to your detriment (e.g., by working to put them through school or staying at home with the children) and you could potentially reclaim the value of your contribution.

The courts will also look at whether you and your partner were engaged in what is known as a ‘joint family venture.’ As a common-law spouse you have no legal obligation to help support your partner, so the law recognizes what you may have done on behalf of your family, and can be applied to ensure that you don’t walk away empty-handed.

Why do I need a cohabitation agreement?

If you are not legally married, then you simply do not have the same default rights to division of property that you would if you were married and then separate. You can, though, protect your interests with a cohabitation agreement.

A cohabitation agreement can work like a marriage contract (they actually become marriage contracts if you get married) where you work together to look at what you would like to cover such as property division, support, any inheritances, and any joint property. You’ll also need to fully disclose your finances with each other to determine what to include.

To do a cohabitation agreement properly, both you and your partner will need individual counsel. A lawyer will review the document thoroughly to ensure that you’re getting what you’re entitled to, and that you’re not signing an unfair deal. No one can pressure either of you into signing a document, so each of you seeking independent advice is the way to go.

Even though you don’t want to think about a happy relationship ending, a cohabitation agreement is meant to protect you in the long run, and can make sure that your happy relationship does not someday place you in danger financially.

You want to make sure you know your rights before you sign, and that any agreement can withstand the test of time. It’s critical to seek assistance for careful drafting to ensure fairness to both parties, and so you can have the peace of mind to focus on what matters most – your relationship.

Contact Lamers Law today to set up a no-obligation consultation and learn more about how to best protect you and your relationship under the law.