Toronto
7 min

Hitching & shacking

A homo's guide to marriage versus common law

SPOT THE DIFFERENCE. Marriage gives more protection to low income earners; common law is easier. Credit: Mia Hansen

So you’ve been shacked up with your partner for a while and wonder what the fuss is about with marriage. What changes once you get the piece of paper – still only available in Ontario and British Columbia – stating you’re married?



Common-law couples might be surprised to find how few factors are affected by a marriage certificate. The landmark 1999 Supreme Court decision M Versus H resulted in sweeping changes to federal and provincial legislation, and has created a queer common-law status equivalent to that of heterosexuals. While in many provinces common-law couples are treated almost like married couples, the regulations on common-law couples vary much more from province to province and from situation to situation.



“There is a comprehensive regime that protects married couples in every province in Canada. At the provincial level protection varies. In Ontario if you aren’t married it’s considerable but incomplete, but not at all comprehensive in New Brunswick,” says Douglas Elliott, a lawyer with McGowan, Elliott And Kim, who represented some of the couples in the Ontario Court Of Appeal case that resulted in same-sex marriage being legalized in Ontario this summer.



Many areas of Ontario jurisdiction treat common-law and married couples equally. These include taxation, pension benefits, Ontario Disability Support Program and the welfare benefits of Ontario Works.



Most of the actual differences between marriage and common-law status apply during separation, divorce and death, something too few couples consider beforehand.



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HOW TO GET MARRIED



In Ontario and British Columbia, same-sex couples can apply for a licence and get married. There is no waiting period, no blood tests and no residency requirements. Both parties must be 18; or if 16 or 17, must have consent of their parents.



Marriage licences are issued by the municipal clerks office and registered by the province after the ceremony.



In Ontario you can have either a civil marriage performed by a justice of the peace, judge or a marriage commissioner or you can have a religious marriage performed by a person authorized to do so – usually a religious leader. Religious marriages can also be performed after banns – the names of the couple are published for three weeks, allowing congregation members time to object.



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HOW TO GET COMMON-LAWED



The federal government (think taxes and pension benefits) defines common-law “as two people, regardless of sex, who have lived together in a conjugal relationship for at least one year.” For the provincial government (think health care, alimony and welfare), the definition can vary from one to three years.



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PROVING THE RELATIONSHIP



Married people have paper proof: a marriage certificate. Common-law partners may have to prove their relationship for various benefits and obligations. Sharing an address might do it for welfare benefits. For other proofs, there are joint tax returns, wills, powers of attorney, shared bank accounts or affidavits.



The one exception to marriage’s blanket automatic status is immigration. Officers expect both married and common-law couples (both straight and same-sex) to prove the validity of their relationship.



“It’s non-conclusive whether marriage will help with immigration,” says Elliott. “Some say there will be no difference at all but… marriage provides some level of bona fides of the relationship. Common-law is harder to document so it could speed the process up for people.”



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HEALTH CARE



The Substitute Decision Making Act in Ontario recognizes the status of a same-sex common-law partner to make health care and other related decisions, but family can still challenge this right. Elliott says he is aware of cases of illness or death where biological families



Refuted the claim of a common-law partner stating the claim wasn’t true or that the couple had broken up already.



Signing agreements for continuing power of attorney – which applies primarily to finances and property – power of attorney for personal care, living wills and regular wills are legal protections for common-law couples. With married couples, the spouse is automatically assumed to have the right to make decisions for the partner.



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TESTIFYING IN COURT



Section 4 of the Canada Evidence Act states that husbands or wives can testify to defend their spouses, but can’t be compelled to testify (there are exceptions).



This special treatment extends to communications between husband and wife; neither is required to disclose to the court any communication between them during their marriage.



The terms “wife,” “husband” and “spouse” are not defined in this act or the Criminal Code and are considered to exclude common-law couples.



If your spouse is convicted, same-sex conjugal visits by common-law partners and married spouses are allowed in federal prisons; provincial jails don’t allow anyone any conjugal activities.



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ENDING THE RELATIONSHIP



Getting out of a relationship is the biggest difference between common-law and marriage.



“A decision to separate is enough to end both types of relationship,” says Jeffrey Behrendt, an Ottawa-based family law lawyer. “The only real difference is that you cannot remarry without obtaining a divorce first.



However, many married couples separate and never obtain a divorce. You can still enter into relationships with other people in this case. You just cannot marry them.”



This has the potential for conflicts, according to Ruth Carey, the executive director of the HIV/AIDS Legal Clinic Of Ontario (HALCO). She says that many people separate and never end up legalizing the separation, which gives rise to the possibility of an ex spouse and a new common-law spouse having equal rights in, for example, decision-making in health matters.



Carey recommends that any separating married couples obtain a separation agreement to help reduce potential conflict down the road.



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THE MATRIMONIAL HOME



In a common-law relationship, a couple could choose to purchase the house together, and if both names are on the deed, both partners have a claim on the property. However, if only one person purchases the house, the other does not have any claim to the house at the dissolution of the relationship, despite contributions through paying into the house, decorating it or maintaining it.



“If your name is not on the home, you could simply come home one day and find yourself locked out,” says Behrendt.



In marriage, regardless of whose name is on the mortgage or ownership at the end of the marriage, both parties have an automatic right to stay in the matrimonial home, says Behrendt.



“So if you are in a common-law relationship and own a home, and decide to get married, you should be aware that you may be giving half of your home to your partner,” Behrendt says.



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PROPERTY DIVISION



Hamilton lawyer Frank Raso says that division of property and assets for married people can be very complicated. Marriage does entitle separating spouses to some kind of property division. Common-law couples who contest who owns what can face a drawn-out legal battle.



In most cases, a divorcing partner is entitled to 50 percent of the value grossed during the marriage – regardless of who brought the property into the relationship – and 50 percent of the value of the matrimonial home. Each divorcee remains in possession of the property he or she brought into the marriage.



“If a couple marries, and the husband owns a house worth $150,000, the wife at the time of divorce would be entitled to 50 percent of the value of the home. If the house is all in the husband’s name, he would then owe his ex-wife $75,000, but he would remain the sole owner. It is the value that is attributable; the owner is always the owner.



“In another situation, though, if on the day the couple married the husband had an RSP worth $50,000, and this increased to $150,000, there would have been an increase in value of $100,000. In this instance the husband is only required to pay the wife $50,000 or 50 percent of the increased value of the asset.”



Common-law couples can’t avail themselves to the rights under the Family Law Act. Instead they must prove that there was “unjust enrichment,” meaning that one partner was unjustly enriched at the expense of the other and owes him or her compensation. Because this is such a hazy area, it is difficult for many people to enforce their property rights.



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SPOUSAL SUPPORT



Common-law spouses have the right to apply for spousal support in situations where they are the natural or adoptive parent of a child and have lived together in a relationship of some permanence or continuously for a period of three years. Spouses that are married, in theory, have a right to apply for spousal support immediately, regardless of the duration of the marriage.



“Courts treats married spousal support claims differently [than common-law claims],” says Raso. “If you are married, then, generally speaking, your claim is stronger. You have to prove very little other than a need for support and the other spouse has the ability to pay for support.”



Raso says that when a judge considers the amount and the duration of the support, married claimants usually get more.



“If a spousal support claim of $1,000 a month has been determined, and you were married for five years, then the judge may consider five years appropriate. With common-law however, they will halve it so that you will get credit for a half year of support for every year of cohabitation.”



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CHILD CUSTODY & CHILD SUPPORT



Under law, the needs and rights of the children are taken into account first before the system looks at marital status. The Children’s Aid Society considers an adult who has acted as a parent for more than six months to be a legal parent, regardless of any other factors.



“Child support is the right of the child, not the parent, even though the parent receives the money,” says Behrendt.



Similarly, he states that custody is based on what is in the best interest of the child, so marital status is not a factor in determining who will have custody of a child.



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WILLS



Once married, the rights of the spouse supersede all other claims. Any previous wills are invalid unless they had been drafted with the marriage in mind.



Under the Succession Law Reform Act, the estate of someone who dies without a will is given to the spouse, children and then the parents, in that order.



Raso says common-law spouses have little recourse if their partner dies without a will, whereas a married spouse is entitled to the first $400,000 of the estate.



“If, as a married spouse, you don’t like what you get under a will, you have the right to property division as if you were getting divorced. You can make a claim against the estate. That right doesn’t exist unless you get married.”



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LIFE INSURANCE



While you are entitled to name anyone you choose as a beneficiary for your life insurance policy, a spouse is known as a “preferential beneficiary.”



“The benefit transfers to them outside the estate and is creditor protected,” explains Scott Reeves, author of Partners: A New Financial Reality For Gay Couples. “This means that the amount of the death benefit is protected from any claims a creditor may make on the deceased’s estate, as well as protecting the money from your own creditors – no one can lay claim to the money.” A common-law spouse might only be able to make a claim after the creditors are finished.