What is the Difference Between common-law and Marriage? - Zukerman Law

What is the Difference Between common-law and Marriage?

In Canada, relationships come in various forms, each with its unique set of legal implications. Understanding the distinction between common-law relationships and marriage is crucial for anyone navigating the complexities of personal relationships and legal obligations.
Whether you’re living with your partner without formalizing your union through marriage or you’ve tied the knot, knowing your rights and responsibilities can save you from potential legal pitfalls.
Common-law relationships and marriages differ significantly in terms of legal recognition, financial responsibilities, and rights. In this blog, we will delve into these differences to provide a clear understanding of what each relationship entails.
By the end, you’ll have a better grasp of how these distinctions impact your legal standing and why seeking professional legal advice from professionals like Zukerman Law Group can be essential.

What is a Common-Law Relationship?

What is a Common-Law Relationship?

A common-law relationship is a domestic partnership where two individuals live together in a marriage-like arrangement without formally getting married. This type of relationship is recognized by law and confers certain legal rights and obligations on the partners, similar to those in a marriage.
The specifics of what constitutes a common-law relationship can vary depending on the jurisdiction, but generally, it involves cohabitation and a commitment akin to marriage.

Criteria for a Relationship to be Considered common-law

To be recognized as a common-law relationship in Canada, certain criteria must be met. These can include:

  • Cohabitation Period: The partners must live together for a specific period, which varies by province. For instance, in British Columbia, the cohabitation period is generally two years, while in other provinces, it can be as short as one year.
  • Shared Responsibilities: The couple must share domestic and financial responsibilities. This can include joint ownership or rental of a home, shared bank accounts, or joint investments.
  • Public Recognition: The relationship should be recognized publicly, meaning that friends, family, and colleagues see the partners as a couple.
  • Intention: Both partners should intend to be in a committed, marriage-like relationship. This intention is often demonstrated through the sharing of financial burdens, household duties, and the care of any children involved.
Rights of Common-Law Partners

Rights of Common-Law Partners

Common-law partners in Canada have a range of rights and obligations that are similar to those of married couples. These include:

Financial Support

Common-law partners may be obligated to provide financial support to each other through spousal support during and after the relationship.

Property Rights

Partners may have rights to a share of the property accumulated during the relationship. This can include the family home, investments, and other assets.

Parental Responsibilities

Common-law partners share the same parental responsibilities and rights as married couples, including custody, access, and child support obligations.

Health and Insurance Benefits

Many health insurance plans and other benefits recognize common-law partners, allowing them to access benefits and coverage as a couple.

Decision-Making

Common-law partners may have the right to make medical and financial decisions on behalf of their partner if they are incapacitated.

What is a Marriage?
what-is-a-marriage

What is a Marriage?

Marriage is a legally and socially recognized union between two individuals that establishes rights and obligations between them. It is a formal contract that binds the partners in a committed relationship, often involving a public ceremony and the signing of legal documents. Marriage is a universally recognized institution that provides couples with a range of legal benefits and responsibilities.

Rights of Married Couples

Rights of Married Couples

Marriage is a legal union between two people, offering a range of rights and obligations. Let’s delve into some key aspects:

Spousal Support

In many jurisdictions, one spouse may be entitled to financial support from the other, depending on factors like income and childcare responsibilities.

Property Division

Upon separation or divorce, assets and debts acquired during the marriage are typically divided equitably (fairly).

Inheritance Rights

Spouses often inherit a portion of the deceased spouse’s estate unless a will dictates otherwise.

Hospital Visitation and Medical Decisions

Spouses generally have the right to visit each other in the hospital and participate in medical decision-making.

Immigration Benefits

Marriage can facilitate obtaining immigration status in a spouse’s home country.

Key Differences Between Common-Law and Marriage

Key Differences Between Common-Law and Marriage

Marriage is a formal legal union recognized by law, requiring a marriage license and a ceremony officiated by a legally authorized person. Married couples receive a marriage certificate as official proof of their marital status, essential for various legal and administrative purposes.
Common-law relationships are recognized based on living together in a conjugal relationship for a specific period, with no single legal document officially certifying them. Proving a common-law relationship often requires a combination of documents, such as joint lease agreements, utility bills, bank accounts, and affidavits from friends and family, which can be more complex than a marriage certificate.

Property Division and Financial Responsibilities

Upon separation or divorce, married couples are subject to their province’s matrimonial property laws, typically resulting in an equal division of all property acquired during the marriage, regardless of ownership.
Married partners are generally responsible for each other’s debts and financial obligations incurred during the marriage and have a legal duty to support each other financially both during and after the marriage.
Property division is less straightforward for common-law couples. Each partner usually retains ownership of property brought into the relationship, while jointly acquired property is divided based on contributions and ownership. Some provinces have specific laws for common-law property division.
Common-law partners are not automatically responsible for each other’s debts. Financial responsibilities are typically determined by cohabitation agreements or by proving financial interdependence.

Parental Rights and Responsibilities

Married couples automatically share parental rights and responsibilities for children born during the marriage, including custody, access, and decision-making regarding the child’s upbringing.
Both parents are obligated to provide financial support for their children, regardless of their marital status.
Common-law partners have the same parental rights as married couples if they have children together. However, proving paternity may require additional legal steps if the father’s name is not on the birth certificate.
Both common-law parents are equally responsible for their children’s financial support, custody, and upbringing.

Spousal Support and Inheritance Rights

Married partners are entitled to spousal support upon separation or divorce, aimed at providing financial assistance to the lower-earning spouse.
Courts consider the length of the marriage, financial need, and contributions to the marriage (including non-financial contributions) and follow established guidelines for fair and consistent awards.
Married spouses have automatic inheritance rights if their partner dies without a will.
Inheritance laws vary by province, but generally, a surviving spouse is entitled to a significant portion of the estate, which can include jointly held property.
Common-law partners may also be entitled to spousal support, but eligibility and amounts can be more complex.
They must demonstrate the nature and duration of their relationship, financial interdependence, and contributions similar to those of married couples.
Common-law partners do not have automatic inheritance rights if their partner dies without a will.
They may need to apply to the court to claim a share of the estate, typically proving the nature of their relationship and financial dependency.
It’s crucial for both married and common-law partners to have a will to ensure their wishes regarding inheritance are clear and legally enforceable.

Impact on Taxes

Married couples benefit from several tax advantages:

  • Joint Filing: They can file joint tax returns, potentially lowering their overall taxes through income splitting and accessing various credits and deductions.
  • Spousal Credits: Specific tax credits like the spousal amount credit reduce the tax burden for married couples.
  • Income Splitting: Some provinces allow income splitting, which can further reduce tax liabilities, especially when there’s a significant income disparity.

Once recognized, common-law partners are treated similarly to married couples for tax purposes:

  • Joint Filing: They can file joint tax returns in some jurisdictions.
  • Deductions and Credits: If they meet eligibility criteria, they can claim many of the same tax benefits as married couples, such as the spousal amount credit.
  • Income Splitting: Some provinces allow income splitting for common-law partners, though rules may differ from those for married couples.
How Can Zukerman Law Group Help?

How Can Zukerman Law Group Help?

Zukerman Law Group offers experienced legal guidance to couples navigating the complexities of marriage and common-law partnerships. Their team can assist you with the following:

  • Understanding Legal Implications: They can explain the legal framework in your area and the specific rights and obligations associated with each option.
  • Drafting Legal Documents: Zukerman Law Group can help you draft prenuptial agreements or cohabitation agreements to outline financial arrangements and protect your interests.
  • Estate Planning: They can guide you through estate planning to ensure your assets are distributed according to your wishes. This is particularly important for common-law partners who may not have automatic inheritance rights.
  • Dispute Resolution: If you encounter challenges down the road, Zukerman Law Group can represent you and advocate for your rights during separation or other legal issues.

By seeking professional legal guidance from Zukerman Law Group, you can gain the knowledge and tools necessary to make informed decisions and build a secure future for your relationship.
Don’t leave your future to chance! Schedule a consultation with Zukerman Law Group and ensure your relationship is built on a strong legal foundation.

Conclusion

Choosing between marriage and a common-law partnership is a personal decision with significant legal implications. This blog has provided a foundational understanding of the key differences between these two options.
Remember, navigating the legalities involved is crucial for building a secure and fulfilling relationship. Don’t hesitate to gain the clarity and guidance you need to make informed choices.

FAQs

  • 1- Is common-law the same as legal marriage?1

    No, common-law and being legally married are not the same. Common-law relationships are partnerships where couples live together but are not legally married. Legally married couples have undergone a formal marriage ceremony and are recognized as spouses under the law. Each type of relationship carries different legal rights and responsibilities, particularly concerning issues like property division, inheritance, and financial support.

     

  • 2- How long do you have to be living together to be considered common-law?1

    A couple is considered common-law or in an adult interdependent relationship if they have lived together in a relationship of interdependence for at least three years.

  • 3- Can a common-law spouse claim spousal support?1

    Yes, a common-law spouse can claim spousal support under certain conditions. In Canada, common-law partners who have lived together in a marriage-like relationship for a significant period may be entitled to spousal support if they separate. Factors considered include the duration of the relationship, financial interdependence, contributions to the household, and sacrifices made for the relationship. Each province has its own laws and guidelines regarding spousal support for common-law couples.

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author

Stuart Zukerman

Stuart Zukerman, a graduate of the University of British Columbia, has over 32 years of experience in litigation with a focus on Family Law, Personal Injury, Wrongful Dismissal claims, and Collaborative Divorce & Mediation. He has extensive trial experience in divorce, child custody, spousal support, asset division, and ICBC injury claims. As an accredited Family Law Mediator, he helps resolve disputes without court intervention. Stuart has also authored papers on family law and lectured at CLE courses.