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

This month's On the Radar continues our overview of how the law treats married and unmarried couples. We'll take a look at dividing property, wills and inheritance, and Canada Pension Plan benefits.

In July, we explained what marriage, common-law relationships, separation, and divorce are, and talked about how they relate to spousal support, child support, and parenting plans.
 

Dividing property

Rules about property are different for married couples than for common-law couples.

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

When a married couple separates, they must usually share any increase in their money or property that happened during the marriage.

They also each have an equal right to continue to live in the home they were living in together when they separated. This is true no matter which spouse's name is on the deed or the lease.

But these rules do not apply to unmarried couples. If a common-law couple separates, each spouse usually keeps his or her own property and they divide things that they own together.

A common-law spouse may claim a share of the other spouse's property or money, but this is not an automatic right as it is with married spouses.

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.
 

Wills and inheritances

Rules about wills and inheritances are also different for married couples than for common-law couples.

Married spouses have certain rights to a share of their deceased spouse's property, whether or not they were left anything in a will.

But common-law spouses do not inherit any of their spouse's property unless it was left to them in the will. So if a common-law spouse dies without a will, their property goes instead to their children or other relatives.
 

CPP benefits

Some federal programs, such as the Canada Pension Plan (CPP), give certain rights to common-law spouses that are similar to the rights of married spouses.

For example, if you lived with your common-law spouse for at least one year and then separated, you can apply to divide the CPP contributions that were made while you lived together. This is sometimes called a "credit split".

This is the same kind of application that a married spouse can make to divide CPP contributions. But there are different time limits depending on whether you were living common-law or were married.

You can also apply for a CPP survivor's pension if, at the time of your spouse's death, you were married or had been living together for at least one year. There is no time limit to apply, but if you wait more than a year after your spouse’s death you might get less money.
 

Conclusion

While marriage and common-law relationships are not as legally far apart as they used to be, there are still some very important differences between them.

Some of the issues can be complicated, and the rules about who is considered a common-law spouse or partner are not always the same.

Always try to get more information and, preferably, legal advice before taking any steps. See CLEO's An Introduction to Family Law in Ontario and Separation and Divorce or Death of a Spouse: Property Division.
This email alert gives general legal information. It is not a substitute for getting legal advice about a particular situation.
August 2014
 
On the Radar is a monthly email alert from CLEO that highlights timely legal information.
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