Common law is not the same as married

No rings on your fingers, no bells on your toes,
Prepare to have money whenever you goes!

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by Gail Vaz-Oxlade
December 27th, 2012

Online only.

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So I’m sitting in a meeting one day with a bunch of women who are trying to convince me that in Canada common-law is the same as married.

Me: It’s not.
Them: Yes it is. The government changed the rules.
Me: Really, like the rule around the matrimonial home?
Them: Yes! Exactly!
Me: Not so much ladies. You might want to rethink your plan.
Them: (Stunned silence)

Lest you are under the impression that living together is the same as married, here I come with my very long, very sharp pin to burst your bubble. While there have been changes made to the laws, it’s still not the same as being married.

The first thing you need to know is that family law is a provincial affair. So, for example, if you live in BC you can claim spousal support if you’ve lived together for at least two years or have a kid together. In Ontario, you’ll have to have cohabited for three years.

Second, don’t assume that as soon as you move into the house together it’s 50-50.

Common law mates don’t have the same financial and property rights as those who have tied the knot. That makes it easy if you want to split up and go your separate ways without untangling the knot. But you better keep good records of what you brought into the relationship, and who paid for what, so you can take what’s yours when you’re heading your own separate ways.

You can create a cohabitation agreement that outlines what will happen if your move-in turns into a move-out. The document you both sign should make clear who stays and who leaves along with how often you’ll get to see the cat.

For sure, you must keep your own financial identity. That means having your own savings, credit (so you’re building a history, not going into debt) and financial goals. And don’t sign for the other’s debt, ever. This is true whether you’re married, cohabiting or just friends with benefits.

Don’t assume the law will protect you. That’s like assuming a bank wouldn’t lend you more money than you could afford to repay…and we’ve seen where that’s gotten us. It’s your job to protect yourself.

9 comments on “Common law is not the same as married

  1. You kind of contradict yourself in this article. When you say "You can create a cohabitation agreement…" that would assume without one, assets are split and spousal payments will be enforced, just like marriage. The ladies were assuming common law means as soon as you move in together. It's not. As you said common law status is only reached after a certain amount of time. The government will actually consider you as married persons after years of cohabitation if it is in their benefit for tax purposes or government programs. Regardless of the laws having been changed, all this is still the same so common law is, basically the same as being married if you can prove you acted as a married couple and were considered such by the general public and your social circle. The title should be "when are you considered common law" as you didn't disprove it being different from marriage at all.

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    • Sorry – but you're wrong. I am a lawyer, and even though you may be elegible to obtain spousal support, unless you are married, you don't have a right to 50% of the assets. A cohabitation agreement can protect you as you can agree to split certain assets 50/50, then it becomes a contractual obligation that can be enforced by the courts. Property rights in a marital breakdown are governed by Part I and Part II of the Family Law Act. Only those couples that are legally married are entitled to benefit from these provisions. The treatment of the matrimonial home (it is called "matrimonial" for a reason) is governed by Part II of the FLA. It doesn't matter if you lived together for 30 years in the "home", you do not have the rights that a married person would have to the home or other marital assets – period. This isn't to say that you can't make a claim for unjust enrichment, but that process is very expensive and you have to try to convince a judge that you should get some of the equity, and even then, it doesn't mean you will get 50%. If you are married, you are automatically protected. The law only states that spousal support may be obtained for common-law couples – you don't have the right to automatic division of property. It is a world of difference.

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      • What Province do you reside? Does it differ fromprovince to province?

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    • Actually what's she saying is that a key difference is the matrimonial home.
      While once married, this is considered an automatic division of assets, in a common law situation, if it can be proven for example, that one person bought and paid for a house and all the expenses with it, if the other person can't demonstrate how they materially contributed to the house/relationship, they are not entitled to a division of those assets. Ie. if one partner is being financially supported by the other, they won't get much when they leave.

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  2. Working in the legal field, specifically the Family Law, I've had to explain this to friends and friends of friends over and over again! Thank you for this. I'm sure you've surprised and disappointed many people today but you've also eased the minds of many others.

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  3. CPP and death benefits are not the same for common-law couples as they are for married couples. I also recommend a cohabitation agreement if you are going to live together, same as I would recommend a pre-nuptual agreement for marriage. It just makes sense to protect the assets you have accumulated.

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  4. This is an important distinction to make. While it is possible to have an agreement drafted up regarding assets upon breaking up or moving out, nobody is automatically protected in common law like they would be if they were married. It's important to know this when going into a common law partnership.

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  5. I do not quite understand, but it gives the more experience

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  6. Fine, this is really a sound wonderful allocation where you have described everything very nicely and I've come to know that common law is not the same as married. Thanks

    Reply

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