Common Law Relationships

One of our readers asked me to elaborate a little on the notion of common-law relationships. 

Common-law relationships are not completely governed by any legislation.  There is no law that says that you and your partner are now  'common-law spouses' for all purposes.   There is no single definition of 'common-law' spouse. 

A common-law relationship is not a marriage, meaning that rights given to married couples are not automatically given to common-law couples.  There are many areas where the rights given to married couples are extended to those in 'common-law' relationships.  However, the definition of a common-law relationship may be different, depending on the law that governs the rights being extended.

The property division provisions of the Ontario Family Law Act do not apply to common-law marriages.  That means that there is no automatic right of one person to claim 50% of the value of the 'family' assets on separation with their common-law partner.

The Family Law Act does apply for the purposes of custody, access and support.  A "spouse" for the purposes of custody, access and support includes people who have lived together for three years and people who are in a permanent relationship and are parents of a child.

The Federal Income Tax Act provides tax benefits to spouses or people who qualify as  equivalent-to-spouse.  The time required to live together may not be the same as the Family Law Act.

There are certain rights that married people enjoy that cannot be enjoyed by "common-law" spouses.  The rights of a widow or widower are different than the rights of a surviving "common-law spouse".

Obviously, there is no easy answer to the question of what rights a "common-law" spouse has.  In some cases, you will have the same rights as a married person. There are many circumstances where those rights do not exist.

Recently, the Supreme Court of Canada decided that same-sex couples have the right to be treated as heterosexual couples for certain purposes.  Therefore, in some cases, a same-sex couple will be considered as "common-law" and get certain privileges and obligations.

There are some cases where it is better not to have common-law status.  For example, two  people living in the same house may pay more tax and have fewer deductions and tax credits if they are considered to be a couple. 

If you are thinking about declaring you and your partner to be common-law, you should look into all the consequences before you do it.  There may be some benefit, but there may also be some disadvantages and you will have to balance them out to see what is better for you.