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Married versus living together: Is there a legal difference? (Part One)

There was a time when the law that applied to married and common-law couples was very different. While many of those differences have gradually disappeared, some important ones still remain.

For the next two months, On the Radar sums it all up for you.
 

What do "marriage" and "common-law" mean?

To be married, a couple must go through a marriage ceremony led by someone who has the legal power to marry people, such as a judge, justice of the peace, or religious official.

Living together in a marriage-like relationship without getting married is often called "living common-law" or "cohabitation".

In Ontario, there's no formal or legal step you have to take to do this.

It also doesn't matter what you call your common-law partner. You might call them your "partner", "spouse", "husband", or "wife".

No matter what term you use or how long you live together, you don't become married unless you go through a legal marriage ceremony.

There's also no set amount of time that needs to pass for you to be living common-law. But the law gives different legal rights to common-law partners depending on how long they’ve been living together or whether they have a child together.
 

Separation and divorce

Both married and common-law couples can separate in the same way. They do not need to go through a formal process, or get a document, to separate legally.

But only married couples can get a divorce. A divorce is a special kind of court order that ends a marriage.

The main legal reason to get divorced is to be able to marry again.

You don't need to apply for a divorce to deal with issues like:
  • support
  • dividing property
  • arrangements for your children
You can do this in a separation agreement or court order without getting divorced.

There's no formal or legal step you need to take to end a common-law relationship in Ontario. If you stop living together as a couple, you're no longer common-law spouses.

But you may still want to have a separation agreement or court order to deal with the types of issues listed above.
 

Spousal support

Spousal support is money paid by one spouse to the other after they separate or divorce.

Married spouses may be able to get spousal support, or may have to pay spousal support.

In Ontario, this also applies to common-law spouses if they have:
  • lived together and have a child together, or
  • lived together for at least 3 years whether or not they have a child together.
Both married and common-law couples can agree to different rules by signing a domestic contract.

You can read more about domestic contracts in On the Radar from February 2013 and CLEO's An Introduction to Family Law in Ontario.
 

Children

If parents separate, they must arrange things like:
  • where the children will live and the time they'll spend with each parent
  • how major decisions about the children's lives will be made and who will make those decisions
  • child support
If the parents can't agree, a judge or arbitrator may have to decide.

These decisions, and other rights that children have, are not affected by whether the parents were married to each other.
 

To be continued …

Watch for next month's On the Radar, when we'll talk about how being married or living common-law affects dividing up property, wills and inheritances, and more.
This email alert gives general legal information. It is not a substitute for getting legal advice about a particular situation.
July 2014
 
On the Radar is a monthly email alert from CLEO that highlights timely legal information.
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