Are you interested in learning about family law matters without having to take a whole course on it? Want to avoid reading lengthy cases and just get to the basics of a concept? Are you not married, living with someone, and want to know if they are considered your spouse for legal purposes? I present to you a Family Law Factoid as it pertains to your love life. While it may not be the most romantic information, it is probably still important for you to know the legal implications of your amorous affairs as a (future) legal professional.
Common Law Spouses
In Ontario, you are a “spouse” once you marry. If you’re married to your partner, you are not a common law spouse; you are a married spouse and are subject to more legal obligations to your spouse upon the breakdown of your relationship. However, you may be considered a spouse at common law if you and your partner have:
- Cohabited continuously together for three years; or
- Cohabited in a relationship of some permanence and you are parents of a child together.
The language here stresses living together as a qualifying factor in determining common law spouses. Casual and serious daters living independently are not typically included here – you can’t really “swipe right” into common law status (that is, unless your Tinder/Bumble relationship turns into a three-year love affair where the both of you live together throughout that time. Or, if you two crazy kids decided to have a child in that fling.) It also seems as though being afraid of commitment will help you avoid legal liability.
It should also be noted that people separate from their married spouses and start a new relationship with a new partner without getting a divorce first. However, even if one or both partners is still legally married to a third party, this does not impact common law rights in Ontario. The majority of the time, if one of the two above qualifications are satisfied, you may just be a common law spouse for legal purposes.
One exception, however, regards medical decisions made on your behalf. If you become unable to make your own health care decisions, and you do not have a power of attorney for personal care, a spouse is able to make these decisions for you pursuant to the Health Care Consent Act. Under this act, your common law partner is considered a spouse if you are in a conjugal relationship and have either (a) cohabited for at least one year; (b) a child together; or (c) entered into a cohabitation agreement together. This one-year time frame is different from the time frame provided in the Family Law Act, which requires at least three years of cohabitation.
You should know that spouses within a marriage and spouses determined by common law are treated differently from a legal perspective. There are several reasons for this. To a degree, the Ontario regime respects those who wish to opt out of the institution of marriage (and related legal implications). Nevertheless, there are laws that treat married spouses and common law spouses similarly, to protect vulnerable parties within these relationships from being taken advantage of in a post-separation situation.
What Happens at the Breakdown of a Common Law Spouse Relationship?
If you’ve become a common law spouse, or know someone who is in a common law relationship, you should know what could legally happen if the relationship breaks down. These legal obligations stem from the Family Law Act. As you read these, remember that it isn’t about being a pessimist: you just want to make sure you are entering this relationship with eyes wide open to future liabilities. That is smart lawyering. Be a smart (future) lawyer.
This is the biggest distinction between married spouses and common law spouses. While married spouses share property equalization under the Family Law Act, a common law partner in Ontario has no legal right to seek an equalization of the net family property (a division of assets). Each person keeps what is in his or her name, and joint property is shared equally. Therefore, a good rule of thumb is not to pay for anything if your name isn’t on it. Keep in mind that this includes the matrimonial home: if your name is not on the title, you could get evicted if things go south between you and your partner. This also applies to wills and estates. In a common law relationship, you have no property rights regarding your partner’s estate. If your partner dies without a will, you are treated as a stranger.
There are also options if you’ve been making significant contributions to your partner’s property. You can make a claim for unjust enrichment or a claim for a constructive trust. But that gets really complicated and you’ll need strong lawyering skills to pull that off. This is what I mean about keeping your “eyes wide open” at the beginning of your relationship: avoid unnecessary and complicated litigation. Foresight is sexy in the legal world and in love. You can quote me on that.
In Ontario, spousal support is only payable to a “spouse.” A spouse can include a common law partner within the Family Law Act; living together with someone can eventually give rise to an obligation to pay spousal support, even if you are not married. This is because the Family Law Act defines “spouse” in two different ways, depending on whether we’re talking about support obligations or about property. Remember that s. 29 of the Family Law Act requires that the cohabitation must be continuous. Therefore, if you’ve broken up and then gotten back together, this could affect whether you are considered a spouse.
Once a common law partner is considered a spouse for spousal support purposes, they have the same rights and obligations regarding spousal support as if they were married.
Child Support & Child Custody
This one is pretty simple. Your rights and obligations regarding child custody and child support are the same in Ontario regardless of whether you are a married or common law spouse. Kids are important and the courts will do everything they can to put their interests at the forefront of their decisions. They are our future, after all.