Introduction
When love is in the air, legal technicalities are often the last thing on anyone’s mind. Yet, the moment you say “I do” or decide to start living together, you’re stepping into a web of rights and responsibilities you might never have considered. In Ontario, marriage and common law relationships aren’t just lifestyle choices—they’re governed by a complex set of laws that can affect your finances, your children, and your future.
This comprehensive guide to marriage and common law relationships will help you cut through the legal jargon and answer your most pressing questions. Whether you’re planning to tie the knot, move in with a partner, or separate, understanding your legal footing is crucial. Let’s dig in.
Table of Contents
- What’s the Legal Difference Between Marriage and Common Law in Ontario?
- How Do You Qualify as a Common Law Couple in Ontario?
- What Legal Rights Do Married vs. Common Law Partners Have?
- How Is Property Divided After Separation?
- How Are Child Custody and Support Decided?
- What About Spousal Support in Marriage and Common Law?
- How Do You Legally Separate or Divorce in Ontario?
- Do You Need a Lawyer for Family Law Matters?
- Conclusion: Protecting Your Future With Legal Clarity
- FAQs: Marriage and Common Law Relationships in Ontario
What’s the Legal Difference Between Marriage and Common Law in Ontario?
Ah, the age-old question: what’s the real difference between being married and living together as common law partners in Ontario? Let’s break it down:
Marriage
- Formally Recognized: Marriage in Ontario is a legal contract. You need a marriage licence or banns, a ceremony performed by an authorized official, and registration.
- Automatic Rights: Upon marriage, spouses get automatic rights under Ontario’s Family Law Act and other statutes.
- Divorce Required: To legally end a marriage, you must get a divorce through the court.
Common Law
- No Formal Ceremony: Common law couples simply live together in a conjugal relationship.
- No Marriage Certificate: There’s no legal document marking the start.
- Separation, Not Divorce: Ending a common law relationship doesn’t require a divorce, but legal issues (property, support, custody) must still be resolved.
Key Point
While both types of relationships can look the same day-to-day, Ontario law treats them differently—especially when things end.
How Do You Qualify as a Common Law Couple in Ontario?
Not every couple living together is considered “common law” in the legal sense. Here’s how Ontario defines it:
Criteria for Common Law Status
- Length of Cohabitation:
- Family Law Act (for spousal support): Living together in a conjugal relationship for at least three years; OR
- If you have a child together: Living in a relationship of some permanence, regardless of time.
- Intention & Relationship:
- Shared finances, joint purchases, and presenting yourselves as a couple can support common law status.
Why Does It Matter?
Your status affects your eligibility for spousal support, inheritances, and more. For example:
- Spousal Support: Rights may arise after three years or if you have a child together.
- Property Rights: Different rules apply compared to marriage (more on this below).
What Legal Rights Do Married vs. Common Law Partners Have?
Here’s where many couples get caught off-guard. In Ontario, your rights as a spouse are tied to your relationship status.
Comparing Key Legal Rights
| Legal Issue | Married Spouses | Common Law Partners |
|---|---|---|
| Property Division | Equalization of net family property (automatic) | No automatic right to property division |
| Matrimonial Home | Both have equal right to possession, regardless of ownership | No automatic right if not on title |
| Spousal Support | Possible | Possible (after 3 years or with a child) |
| Pension Division | Possible | Not automatic; must seek under trust law |
| Inheritance | Automatic right if no will | No automatic right; must claim as dependent |
| Divorce | Required to end marriage | Not applicable (separation only) |
In a Nutshell
- Married? You get more automatic rights, especially around property and inheritance.
- Common law? You may need to prove your entitlement, and property division is not automatic.
How Is Property Divided After Separation?
Let’s face it—nobody moves in together thinking about breaking up. But if things go south, who gets what?
Married Couples
- Equalization of Net Family Property:
On separation, each spouse calculates the net increase in their assets during the marriage. The spouse with the higher increase pays half the difference to the other. This is called “equalization.” - Matrimonial Home:
Both spouses have an equal right to stay in the matrimonial home, even if only one’s name is on the deed.
Common Law Partners
- No Automatic Property Division:
There’s no equalization. Each person keeps assets in their own name. - Possible Claims:
- Joint Assets: Split according to ownership.
- Trust Claims: You might make a “constructive trust” claim if you contributed to property owned by your partner (e.g., renovations, mortgage payments).
Practical Example (No Names)
Suppose you invest in your partner’s house while living together. If you separate, you may need to prove your financial or non-financial contributions to get a share.
How Are Child Custody and Support Decided?
Kids change everything—including how the law sees your relationship.
Child Custody and Access
- Best Interests of the Child:
Regardless of marital status, Ontario courts focus on what’s best for the child. - Types of Parenting Arrangements:
- Decision-making responsibility (formerly called “custody”)
- Parenting time (access/visitation)
Child Support
- Who Pays?
Both married and common law parents have a legal obligation to support their children. - How Is Support Calculated?
The Child Support Guidelines set out payment amounts based on income and number of kids.
Key Takeaways
- Parental rights and responsibilities are the same for married and common law parents.
- The court won’t favor one over the other based on relationship status.
What About Spousal Support in Marriage and Common Law?
Money is often the stickiest issue during a breakup. Here’s what you need to know:
Married Spouses
- Eligible for Spousal Support:
Either spouse can seek support after separation or divorce.
Common Law Partners
- Eligible After Three Years:
You can claim support if you’ve lived together for at least three years, or if you have a child together and have lived in a relationship of some permanence.
How Is Spousal Support Calculated?
- Factors Considered:
- Length of relationship
- Roles during the relationship (income, caregiving, etc.)
- Financial need and ability to pay
- Agreements made between partners
- Spousal Support Advisory Guidelines
These are often used to determine the amount and duration, but courts have flexibility.
Do Prenups or Cohabitation Agreements Matter?
Absolutely. A marriage contract or cohabitation agreement can set out terms for support, property division, and more. They’re highly recommended for both married and common law couples who want clarity and control.
How Do You Legally Separate or Divorce in Ontario?
Ending a relationship is rarely easy, but understanding the steps can make it less daunting.
For Married Couples
- Separation:
- No legal document required, but you must live “separate and apart.”
- Can occur under the same roof.
- Divorce Application:
- File in court after one year of separation (or immediately for adultery/cruelty).
- Resolve issues like property, support, and custody in your divorce judgment.
For Common Law Partners
- Separation Only:
No divorce required. You’ll need to resolve property, support, and parenting issues, often through a separation agreement.
Steps to Take
- Consult a Family Lawyer:
Get advice tailored to your situation. - Gather Financial Documents:
Income, assets, debts—all relevant. - Negotiate a Separation Agreement:
This can address property, support, and parenting. - Court Application (If Needed):
If you can’t agree, the court can decide.
Do You Need a Lawyer for Family Law Matters?
You’re not legally required to have a lawyer, but here’s why it’s smart:
- Complex Laws: Family law is full of traps for the unwary.
- Protecting Your Rights: A lawyer ensures you understand your entitlements—and obligations.
- Negotiation & Mediation: Lawyers can help reach settlements, saving time, money, and stress.
- Court Representation: If your case goes to court, legal counsel is vital.
Unbundled Legal Services
Not every case needs full representation. You can hire a lawyer for specific steps—like reviewing an agreement or handling a court appearance.
Conclusion: Protecting Your Future With Legal Clarity
Whether you’re saying “I do,” moving in together, or facing the end of a relationship, understanding your rights is more than a technicality—it’s the foundation for your financial security, your family’s wellbeing, and your peace of mind. Ontario’s laws around marriage and common law relationships are nuanced, and what you don’t know can hurt you.
This comprehensive guide to marriage and common law relationships is just the first step. For tailored advice and the confidence that comes from having Ontario’s trusted family law experts in your corner, contact a reputable law firm that focuses on family and divorce matters. The right legal guidance can help you avoid pitfalls, protect what matters most, and move forward with clarity.
For more information on your specific situation or to book a consultation, seek out a law firm with a strong track record in Ontario family law—one that puts your needs first, offers clear advice, and supports you from start to finish.
Related Links:
- Family Law Services
- Divorce Lawyers
- Separation Agreements
- Child Custody Lawyers
- Spousal Support Lawyers
A Comprehensive Guide to Marriage and Common Law Relationships isn’t just a resource—it’s your roadmap to a more secure and confident future in Ontario’s ever-evolving legal landscape.
