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Common-Law vs Marriage - A Key Legal Difference

According to Statistics Canada, between 2006 and 2011, the number of common-law couples in Canada rose almost 14%, a whopping four times as many as the number of couples who got married over the same period. Despite the increase, there's still a thick fog of confusion surrounding the rights and obligations of cohabiting couples in Canada. That's not surprising, given the vastly differing laws that govern such relationships in each province.

In British Columbia, common-law couples have the same rights and obligations as their married counterparts. Cross the nation over to Quebec and unmarried couples have no legal obligations to one another no matter how long they live together.

Ontario lies a bit in between the two. The length of time that couples must live together in a conjugal relationship before being considered common-law spouses differs depending on the particular law in question. For most areas, it's three years - but no minimum if the couple has a child together.

Although many areas of family law treat common-law and married couples the same, the biggest difference in Ontario is in the area of property division. Without the benefit of marriage, common-law couples who separate don't automatically split family property 50/50 as do married couples. When the relationship ends, each party keeps full ownership of property that he or she originally brought into the relationship, along with any increase in the value of such property. Under some circumstances, the other spouse can seek a share, but this is a complex area of law that we'll treat in a future post.

Each party also keeps property purchased after moving in together, provided that such was purchased with his or her own funds. Only property that the couple purchased jointly during the relationship must be shared.

One of the ways that common-law couples can navigate the limitations of this property division framework is to have a legally binding cohabitation agreement - and best to do so at the beginning of the relationship than at the end. Don't have one yet? Call us. We can help.

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