Differences Between Married Spouses and Common Law Partners in Ontario

When couples separate in Ontario, much depends on whether they are married or common-law partners when settling the key financial and family law matters.

Despite assumptions that they share equal rights, each type of relationship has its own legal rights and obligations when partners separate in Ontario. With the increase of common-law relationships in Ontario in recent years, these legal rights are becoming more important to understand.

Let’s consider the main legal differences between married spouses and common-law partners in Ontario, so that couples know what to expect if they separate.

Married spouses in Ontario are covered by both federal and provincial legislation. The federal Divorce Act and Ontario’s Family Law Act both recognize the union and address the rights and obligations of married spouses.

The same does not apply to common-law partners, who choose not to go through a formal process to recognize their relationship in Ontario. They simply live together in a marriage-like relationship or have a child together.

The following definition for an unmarried spouse is included in Ontario’s Family Law Act, which is the only legislation to address common-law couples:

“either of two persons who are not married to each other and have cohabited,

1. continuously for a period of not less than three years, or
2. in a relationship of some permanence, if they are the natural or adoptive parents of a child.”

Some differences between the rights and obligations afforded to common-law partners and married spouses exist. So, although they may face the same issues regarding property division, support, and child custody/parenting upon separation, married and non-married spouses cannot always rely on the same regulations for resolving the issues.

The right to an equal share of the marital estate is fundamental and presumed for married couples in Ontario. So, any property accumulated or that has increased in value during the time of the marriage—with very few exceptions—will essentially be split down the middle.

The province’s “equalization of net family property system” for married couples is governed by the Family Law Act. Generally, the net family property of both spouses is calculated and the spouse with the higher value compensates the other to ensure close to an equal split.

Common-law spouses, on the other hand, do not enjoy a presumptive right to an equal share of property under the Family Law Act if the relationship ends.

To claim a fair share of property from their partner, common-law spouses face a more challenging task, using the principles of unjust enrichment, constructive trust, and other such common-law principles of fairness. Without an automatic right, legal assistance is often required to support claims, with mediation or litigation frequently required to resolve matters.

The rights for married and non-married spouses are similar when it comes to spousal support. Whether married or not, the family law system in Ontario seeks to prevent financial hardship as a result of a relationship breakdown.

Spousal support can address potential economic disadvantages for a partner if the relationship ends. Under the Family Law Act, the lower-earning spouse may have a right to support payments from the higher-earning spouse to ease the transition to an independent and self-sufficient life.

The amount and duration of spousal support depend on the length of the relationship, the respective roles of each partner during the relationship, the employability/earning capacity of the claimant, and other factors.

If there are children from a broken relationship in Ontario, the main governing principle for the courts is the child’s best interests. This is the case whether the parents are married or not.

The Children’s Law Reform Act and Family Law Act both protect dependent children and ensure that parenting responsibilities and child support obligations are prioritized.

A set of child support guidelines helps parents calculate the amount of child support to be paid. However, the federal Child Support Guidelines only apply to married couples, while unmarried parents must refer to the Ontario Child Support Guidelines.

Generally, a parent must pay child support until the child is at least 18 years of age. If the child continues to be financially dependent after this age, due to full-time study or a disability, the parent’s support obligation usually continues.

When it comes to parenting and custody (now called decision-making responsibility) in Ontario, unmarried parents may need to establish paternity before custody or child support decisions can be made.

If the parents cannot agree on living arrangements or who should make important decisions for the child, the court will determine an arrangement that provides a stable, nurturing environment and allows the child to maintain frequent and meaningful contact with both parents, if that is in the child’s best interests.

The circumstances of each case are unique. It’s best to discuss your situation with a qualified divorce lawyer before making major decisions or taking any legal action.

Marriage contracts are sometimes known as prenuptial agreements or postnuptial agreements (if signed after the marriage has started).

The same type of agreement can be drafted before or after a common-law relationship begins. This is known as a cohabitation agreement.

Such contracts are becoming more common, as people often get married later in life, having already accumulated significant assets. The main purpose of these contracts is to protect these assets and to settle how marital finances are divided if the relationship ends in the future.

Because of the different legislation covering married and unmarried couples in Ontario, marriage contracts and cohabitation agreements must be structured and drafted differently by professionals with knowledge of the relevant laws.

For instance, married couples have a legal right to an equal share of marital property but common-law couples do not. Agreements need to reflect this important difference.

Full financial disclosure is required for both types of agreement to be valid and neither party should be pressured or coerced into signing the agreement. It is also advisable for both parties to seek independent legal advice before entering into the agreement.

For assistance with any aspect of a separation or divorce in Mississauga, consult with an experienced family lawyer at Amiri Family Law. Book a consultation for advice on your legal options.