How are Common Law and Marriage Different?

Despite the fact that the distinction and consequences of being married or in a common-law relationship has been clear in the law for many years, the specific rights and responsibilities that arise depending upon whether a couple is married or simply cohabiting are still not well-known and are often a cause for confusion and financial loss.

Child Support

Most importantly, child support is not affected by the nature of the relationship. Spousal support is similarly not directly affected by the mere fact of marriage. Married or not, the length of time a couple cohabits will be among the most significant factors in determining the duration for which spousal support is payable. The quantum of spousal support, on the other hand, is rather involved and family lawyers should be engaged to ensure proper financial disclosure is made and to calculate an accurate range of what that quantum might be. Online calculators of spousal support may provide some indication, but the courts are only influenced by the Spousal Support Advisory Guidelines, and this is only accurately calculated by dedicated software as is used by family lawyers.

Assets and Debts

The critical difference between married and non-married cohabitation is the sharing of assets and debts.

With certain rare and specific exceptions, married couples must equalize net family property (their assets minus liabilities at separation, less what they brought into the marriage) upon separation. Unmarried couples do not. If you have children together, that still does not affect such sharing.

Here is an example of what the different consequences might be:

A couple, “N” and “A”, are together fifteen years. Both had nothing at the beginning of the relationship, nor did they owe anything. N accumulates $10 million dollars in wealth over the course of the relationship, all of which is in N’s name. A accumulates nothing. N and A separate.

If they are not married, A receives absolutely nothing (with certain challenging and difficult exceptions). If they are married, A receives an equalization payment in the amount of $5 million dollars, unless there is a binding agreement stating otherwise.

In the event that this couple married sometime during the course of N accumulating their wealth, the amount that would be shared would be the increase in N’s net worth from the date of marriage until the date of separation.

One might find oneself becoming cynical about marriage. Be at ease. As with most things in family law, seeking advice early, before any problems arise, is the most prudent course. For anyone in a relationship of any permanence, or consider entering into one, a marriage contract or cohabitation agreement can help.

The above is the current state of Ontario law. The law on this topic varies from province to territory. Be sure to contact a family law practitioner within your jurisdiction to ensure you have all the information you need.

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Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel.

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