What is a “common law” relationship? – Family and matrimonial
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People often think of themselves as being in a âde factoâ relationship or as being in a âcommon-lawâ relationship, but from a legal standpoint, what does that really mean? This blog post will explore some of the main differences between a âde factoâ relationship and a formal marriage, focusing on the differences in the event of separation.
De facto relationship
A âcommon-law relationshipâ is not a technical legal term for family law purposes. However, many people, including lawyers, can use this term in everyday conversation for convenience. Generally, what people mean in Ontario when they refer to a “common-law relationship” is a couple who have lived together for at least three years in a conjugal relationship, that is, a relationship that is effectively. the same as a wedding. The reason three years is used as the deadline is that this is when spousal support obligations come into effect under Ontario law.
In contrast, a formal wedding is much simpler. The parties request and receive a state marriage certificate. This clearly proves that they are spouses. The parties do not have to live together for a period of time for the marriage to take effect and, of course, many traditional couples do not live together until they get married.
Differences during separation
In the event of separation, there are some key differences between a common-law relationship and a marriage.
Perhaps the biggest difference concerns the division of property. In the event of separation, formally married spouses have the right to an equal division of their net family property. In this context, the term âpropertyâ is extremely broad and includes real estate, bank accounts and investments, as well as any other type of property, less debts and other liabilities.
Perhaps surprisingly, there is not a similar right to the division of property for people living in a de facto union. On the contrary, the presumption of a common-law relationship is that each party takes with it only the goods which are in its name. There are still certain types of claims (for example, claims for a constructive trust or a joint family venture) that a party in a common-law relationship may be able to make in order to obtain some type of division of property, but these are often difficult and complicated, and are worth a separate article of their own. The default position is that a married couple is entitled to division of property, while a de facto couple is not.
A second difference concerns spousal support. Married couples are automatically considered “spouses” for the purposes of spousal support. In contrast, as mentioned above, in Ontario, a common-law couple must cohabit in a conjugal relationship for three years in order to qualify as “spouses” for the purposes of spousal support. In certain circumstances, a common-law couple may be considered a spouse for spousal support purposes even if they do not live together physically, provided their relationship is otherwise sufficiently marriage-like.
In addition, if a common-law couple in Ontario has a child together, instead of cohabiting for three years, it is sufficient that they âcohabit in a relationship of some permanenceâ to be considered spouses for the purposes of spousal support. It is an ambiguous expression which is interpreted by the courts on a case-by-case basis.
When it comes to child support, however, there is no difference between being married or not. A parent will have the same child support obligations regardless.
Another difference concerns divorce. For a common-law couple, it is not necessary to obtain a formal court order granting the divorce, since they were never married to begin with. On the other hand, a married couple must obtain a divorce, or they remain married, even if they have been separated for years. However, there may be statutes of limitations as to when a common-law partner can request partition of family property or support.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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