Common law vs. marriage: What are my legal rights?

Click to play video: 'Stuart Zukerman has some tips for common law couples'
Stuart Zukerman has some tips for common law couples
Common-law relationships are not as simple as some may think. – Feb 25, 2019

More Canadians are entering common-law unions than ever before. 

Around one-fifth of Canadians are in common-law relationships, a three-fold increase from 1981, according to 2016 data from Statistics Canada. 

The type of relationship arrangements in the country have greatly shifted over the last few decades, with marriage rates declining and separations or divorce becoming increasingly common, StatsCan reported in 2019. 

In Canada, what’s defined as a common-law relationship varies from province to province, but it typically means two people who are living together long-term period and share finances or assets.

The cost of a lavish wedding can interfere with other goals like home ownership and having children which is why Sonya Mehta, 38, and her partner decided to do both those things first.

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Mehta and her partner have been together for nine years and share a two-month-old baby. 

“We had different priorities, we started later in life in terms of relationships … and thought, why spend that money on a big huge wedding?” said Mehta, who lives in Waterloo, Ont. “It wasn’t the right time, so we got a house, a new car and started our family.”

Marriage isn’t off the table for Mehta — but they wanted to focus their finances on getting their lives started first, she said. 

“What is marriage? It’s a piece of paper that says you guys are together forever. We have a kid, we have a house, we have a family, we’re together every day. Do we need a piece of paper to tell us that?”

Conjugal relationships are changing 

Societal shifts over the last few decades have caused many to question the institution of marriage, especially since divorce is so common, said Laurie Pawlitza, a family lawyer based in Toronto. 

“People are just less enamored with the institution, and some people are of the view that: I don’t need to have the expectation of what a wedding is,” Pawlitza said. “A lot of people feel overwhelmed too about what a wedding is supposed to look like.”

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Those financial barriers, especially for millennials, may be a reason to invest in property ownership and delay a wedding, according to previous a report by Business Insider.

Some may be moving away from marriage or delaying marriage because it is not needed to start a sexual relationship or to raise children, said Sinikka Elliott, an associate professor in sociology at the University of British Columbia. 

“Marriage has become de-institutionalized, so it’s not the only institution available to establish a committed relationship,” said Elliott. “It’s not the only route … but it still carries a highly symbolic role in North America; it’s often tied to religion.”

The declining significance of religion in public life and the increased secularization of Canadians is another reason why common-law relationships may be more popular, she explained. 

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Set gender norms associated with heterosexual relationships and traditional marriage may also be an element some want to avoid, she said. 

When more legal options are offered other than marriage, people seem to take them, Elliott said. 

Click to play video: 'How common-law relationships are not the same as marriage in Alberta'
How common-law relationships are not the same as marriage in Alberta

“Research shows that countries that create an alternative to marriage that has similar or equal rights or benefits to marriage, people often opt for that,” she said. 

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For instance, in Norway couples are more likely to have kids prior to marriage and typically marry later in life. But there are more legal protections in place for those who do — as legally they are granted joint parental responsibility, like a married couple, according to Norwegian law. 

A 2013 paper found this makes marriage in Scandinavia more about personal preferences rather than the only option with legal protections. 

According to a 2018 poll by Angus Reid, 59 per cent of Canadians said that those who legally marry shouldn’t receive extra tax benefits that aren’t available to common-law couples. As well, 58 per cent said that common-law relationships should be treated the same as marriages. 

Depending on where you live in Canada, your legal protections can be limited in a common-law relationship, especially when determining dividing assets if you break up, said Pawlitza. And that can make common law a less advantageous option, simply from a financial point of view, she explained. 

“It’s very uncertain if you’re common law. The spousal support rights and the child support rights are clearer, but the property rights…is often very unclear,” she said. 

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In Ontario, common-law status entitles partners to claim spousal support but not property. Quebec has the highest rate of common-law unions in Canada at nearly 40 per cent, but the province doesn’t grant those couples the same rights as married couples.

Only B.C. is considered to be fairer towards common-law couples, offering the same rights to those partners as married couples after they live together for two years. 

Often, if you want to make a claim on your partner’s property that you may have helped buy, you need to prove that, and it can be difficult to say what you might be entitled to, said Pawlitza. 

Automatic rules that apply to property if you are living common law would be helpful in provinces that don’t have that setup, like Ontario, she said. Currently, the guidelines are discretionary, and often difficult to interpret, she added. 

“It’s so everybody is sort of on an equal playing field,” she said. “I think people have difficulty with wrapping their head around what I’m really entitled to, if you’re common law and you split.”

Break-ups are painful regardless of marriage status — and it’s not something you can avoid just because you’re not legally married, she said. 

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If Quebec has few legal protections, why is common law so popular?

According to 2016 data, nearly 40 per cent of Quebec couples were in common-law relationships, which is at a higher rate than couples in Sweden and Finland, said Hélène Belleau, a professor at the Institut National de la Recherche Scientifique in Montreal.

In 2015, Belleau surveyed thousands of couples across Quebec to determine why they might prefer common-law partnerships.

Misinformation about the rights they have within common-law unions is a reason why some Quebecers choose not to get married, she explained. 

 “When they say they don’t want to get married, often they [believe] it’s the same thing to be married or be in a common-law union”, which isn’t correct, said Belleau. 

She says that the Quebec government sometimes gives the impression through social policies and tax income law that your legal rights are the same if you’re in a common-law relationship, creating confusion.

“On the other side, we have the civil code, and in that, it’s only married couples who have a legal framework,” she said. “When a common-law union separates … even though they have children and share their expenses, when they break up they are considered strangers.”

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Culturally in Quebec, common-law unions are socially accepted and many don’t even know if a couple is married or not, she explained. 

Women often don’t change their names when they get married, and even in the language they use words that will refer to their partner in a way that means they are living in a common-law union, even if they are married, said Belleau. 

“They reject the traditional vision of gender relations, that’s one of the main reasons,” she said.

Quebec didn’t legalize divorce until 1968, and some associate marriage with men owning property and women having economic difficulties as a result, she explained. 

But the myth around common-law relationships in Quebec and in other provinces is that it’s similar to traditional marriage legally, is a problem and can get couples into hot water if they don’t know their rights, said Belleau. 

“The main problem that we have is that [many] say it’s the same thing from the legal point of view,” she said. “There is no social net.”

Even though it’s not a romantic prospect, 40 to 50 per cent of all couples separate in Canada and being secure in your legal protections may make marriage a more stable option said Pawlitza. 

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“People think that somehow with [common-law unions] there’s a lesser attachment but I don’t think that’s the case,” she said. 

“There are in for emotional upheaval if they separate, whether they’re married or common law,” she added. “If people think they are going to escape some of the drama, in my experience, that wouldn’t be the case.”

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