Living Common law versus Marriage

COMMON LAW AND MARRIED COUPLES - WHAT IS THE DIFFERENCE?

Many people are under the impression that if you are living “common law” that you eventually acquire the same rights as married couples.

I have heard, over the years I have practiced, various timelines require to “prove common law”. Some people think the you have to live together for six months; others for a year. But in every case, the person calling me for free legal advice usually is very firm with me that common law partners have the same rights upon marriage breakdown as married partners.

This is not so - it is really not so.

In Ontario, the Family Law Act distinguishes between common law and married couples for the purposes of property equalization. Married people are entitled to property equalization. Common law couples are not.

Under the legislation, common law partners can ask for spousal support (s. 29), but NOT PROPERTY EQUALIZATION. In order to ask for spousal support, a common law couple must have been living together for three years or more, OR they must have a child together, and have been living together in a relationship of “some permanence”.

This leaves common law couples in a very difficult position on breakdown of the relationship. If the family residence, for example, is owned by one spouse, and the other is not on title, the spouse that owns the house can summarily kick the non-titled spouse out. The non-titled spouse has no recourse to the sections of the FLA regarding possession of the matrimonial home. This is because unmarried couples do not have “matrimonial homes”. They may have family residences, but they don’t have matrimonial homes as defined by the FLA. They cannot have them. Only married people can have matrimonial homes.

This is not to say that common law partners have no remedies. They may have trust claims against the other spouse. For example, if one spouse has contributed money or money’s worth to acquisition of an asset owned by the other, s/he may have a claim to a resulting trust. As a further example, if one spouse has made it possible for the other to acquire assets, perhaps by raising the children, or by doing unpaid farm work or (very potentially, and not firmly defined in Canadian law) unpaid housework, s/he may have a constructive trust claim. These claims are always possible, but they are difficult to make out. They require extensive proof of money having changed hands, and lots of evidence about who did what on a daily basis within the relationship. They are expensive court applications, with no guarantee of success for the applicant.

Contrast this with what married partners are entitled to on marriage breakdown: married partners are entitled to an automatic equalization of Net Family Property (see my FAQ on property issues) unless one of them manages to convince the court that a variation of the equalization is appropriate pursuant to s. 5(6) of the FLA. Married partners do not need to prove that they contributed to the acquisition of an asset in any way, or that their unpaid house/farm work resulted in the unjust enrichment of the other spouse. They just have to prove they are married, and the equalization provisions of the FLA become applicable.

Variations of equalization pursuant to s. 5(6) are relatively rare. The applicant first has to show that an equalization pursuant to the legislation will be “unconscionable”. This is a fairly stringent legal test. It means a lot more than just “unfair” or “burdensome”. It means that the equalization as provided in the legislation has to be “shocking to the conscience” before the court will consider varying the equalization.

The Supreme Court of Canada in Nova Scotia v. Walsh made it clear that this distinction between married and unmarried partners is acceptable pursuant to the Canadian Charter of Rights and Freedoms. The court said that people who marry make a conscious choice to accept the responsibilities and rights of married people. Those who live together cannot be presumed to have made any such choice, according to the Supreme Court.

This is interesting, and challenging. In so many other areas of family law, if a thing looks like a duck, it is a duck. For example, if a man treats his (married or common law) wife’s children as his own, he is presumed to be standing in the place of parent, and he can be ordered to pay support for those children, no matter what he “decided” anywhere along the path of the relationship, or even after the relationship ended. There are excellent policy reasons for this approach, of course - but it suggests that what we “consciously decide” at the outset of a relationship will matter very little, unless it has been reduced to writing. This is not so when it comes to property equalization, however. A common law couple could decide between them at the beginning of their relationship that they will share everything. They could say this over and over to each other. When the relationship breaks down, there will be no automatic sharing, no matter what the parties said to one another. If one spouse reneges on the oral arrangement, there will be no sharing of assets - unless the other spouse wants to try to make a trust claim, with all its inherent difficulties. There will be no presumption that the couple meant to share everything, even though this is how they were living.

When Nova Scotia v. Walsh was rendered, I remembered thinking that the decision was absolutely essential to the same-sex decisions that were coming down the pipe at that point. The court could not say that unmarried cohabitants could acquire the same property rights as married couples without also having to say that there was no functional distinction between marriage and living together. If there is no functional distinction between marriage and living together, then same-sex couples could not easily claim that they are being discriminated against on the basis of sexual orientation if they were denied the right to marry.

In short, under Canadian law, marriage does carry far greater rights to property than living common law does. Rightly or wrongly, getting married grants couples the advantage (or the burden) of property equalization. Living together grants cohabitants very little, except the right to claim support against one another.