Marriage vs. Common-Law Relationships: Property and Support

What is the difference between being married and living common-law?

It is becoming increasingly common for people to choose to live together without getting married.  If you are considering this option, it is important to know the legal differences between the two relationships.  In this post, Jeffrey Sun, a Fresh Legal intern, outlines two factors you should consider: Property Division and Spousal Support.

There are also differences in wills and estate planning, and powers of attorney.  Read more about those differences here.

Division of Property

If you are married, upon separation you are entitled to ask for a division of Net Family Property. To learn more about this process, see our blog here. In short, the spouse with less property acquired during the marriage is entitled to a payment from the other spouse that has the effect of equalizing any gains made during the marriage.

If you are in a common-law relationship and separate, then you are not afforded the same rights as married persons. You do not get an equalization payment. You must instead make a claim for unjust enrichment to the courts, and ask them to give you an interest in some of the property acquired during marriage.  

Regardless of whether you were married or common law, you may apply for a division of Canada Pension Plan credits.

Spousal Support

As far as the law is concerned, both married persons who divorce and common-law spouses who separate are entitled to spousal support, and children of the relationship are entitled to child support. To learn more about financial obligations after divorce or separation, see our blog here. It is important to note that both the Divorce Act and the Family Law Act have provisions dealing with support for children and ex-spouses/ex-partners.

For people separating from common-law relationships, in order to claim spousal support, you must have lived together as a couple (a) for 3 years, or (b) if you had a child together, for any duration as long as the relationship was one of some permanence.  For married couples, you do not have to meet this test.