When a couple moves in together, along with good wishes, they are likely to receive misinformed advice. Contrary to what many seem to believe, there are important legal differences between living together and being married. Just what these differences amount to depends on where the couple lives. (I will avoid using the term “common law marriage.” Not all jurisdictions recognize common law marriage, so using the term where it may not be appropriate is misleading.)
Below I’ve outlined some of the main differences between married and cohabitating couples in Ontario. The key difference is that married couples are treated as an economic unit, while cohabitating couples are not.
Primary Residence: When a married couples divorces after three years or more, both have an equal claim to live in the family home. This is regardless of whose name the property is in. Cohabitating partners do not automatically have this right.
Other Property: Unless they have previously agreed to do otherwise, married couples who divorce share the value of the property acquired during the marriage, as well as any increase in the value of the property they brought into the marriage. For example, Jim has owned a vacation cottage since before he married. If it goes up in value by $20,000 while he is married to Jane, then Jane is legally entitled to $10,000 upon divorce. If Jim and Jane were cohabitating, she would not be entitled to any increase in the value of the cottage. Similarly, cohabitating partners do not share any property that either acquires during the time of cohabitating. If Jane buys an artwork while living with Jim, she does not have to share it with him if their relationship dissolves. If they were married, Jim would be entitled to half of the value of the artwork. But note! Even if they are not married, if Jane contributes financially to the upkeep of the cottage, or Jim contributes some funds to purchase the artwork, the situation may be different.
Child Support: Children have the right to a relationship with both of their parents, and children have a right to be financially supported by their parents. This is true whether their parents are married or not. In some cases, the courts have ruled that if a cohabitating person has treated a partner’s child as his or her own, the child may be entitled to support from that partner.
Spousal Support: This is probably the trickiest area of all. Both married and cohabitating partners who break up may be entitled to support. A recent decision by the Supreme Court of Canada has set out a new framework for resolving property and support disagreements between formerly cohabitating partners. The case in question centered on a woman who moved out of the province to be with her partner and left a job to raise their children. Although the couple was not married, the court decide to treat their economic activities as a “joint family venture.” She was found to be entitled to half the increase in value of the couple’s assets, which amounted to about $1.5 million. (You can read the details of the case here.)
Inheritance: If a married person dies without a will, the surviving spouse is ordinarily entitled to part of the estate. If the couple is not married, the surviving partner does not have an automatic claim on his or her partner’s estate. If the surviving partner has helped pay for property that is in the deceased partner’s name, he or she may have to go to court to prove this before the estate can be settled.
I have taken most of this information from What You Should Know About Family Law in Ontario, a publication of the Attorney General’s Office. I am not a lawyer, and I don’t intend for this posting to be taken as legal advice! Family law is incredibly complicated. I’m told that even lawyers who work in other areas of the law find family law to be difficult. To find information relevant to your particular situation, you must consult a lawyer.
Next time: I’ll write about “cohabitation agreements” for unmarried couples.
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