Married vs Unmarried Spouses: What’s the Difference?

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Several misconceptions seem to exist with respect to the definition of a common-law relationship and the rights and obligations that flow from these kinds of relationships. This post intends to clarify two of the most common misconceptions: If my partner and I move in together, we are automatically considered common-law spouses.

False. Section 29 of the Ontario Family Law Act puts forth specific criteria which must be met in order for a relationship to be deemed “common-law”. According to section 29, a common law relationship exists only where:

  1. The parties have been cohabiting as a couple for three years; or,
  2. The parties are in a relationship of some permanence and are natural or adoptive parents of a child.
If my common-law partner and I separate, we have the same rights and obligations as married couples.


 

This is also false. Unmarried and married spouses are subject to different rights and obligations upon a breakdown of the relationship. In Walsh v. Bona, the Supreme Court of Canada explained that the reason for this was that marriage involved a positive intention to share in the assets and liabilities accrued during the marriage, whereas this intention does not flow from the mere decision to live together.


 

While both common law and married spouses are entitled to make a claim for spousal support following a separation, common law couples do not have the same rights and obligations with respect to property division.


 

Generally speaking, and subject to certain exceptions, when married spouses separate, they are automatically entitled to share equally in the assets and debts accrued during the marriage. This entails that each spouse undertake an accounting of the assets and debts accrued during the marriage. The figure reached is called the spouse’s Net Family Property. The spouse with the higher Net Family Property is required to pay one-half of the difference between the parties’ NFP’s to the party with the lower NFP, called the Equalization Payment. Unmarried or common law spouses are not contemplated within this Equalization scheme.


 

Despite the fact that common law spouses do not have the same automatic right to property as married spouses under the Family Law Act, they can potentially share in their spouse’s property by making a claim for constructive trust or Joint Family Venture.   However, it must be remembered that these types of claims can be complex and difficult to prove successfully.


 

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.


 
Kain & Ball Family Law
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