Difference Between Common Law and Marriage

Today, we'll be discussing the differences and similarities between common law relationships and marriage in regards to division of property and support.

In this video blog we will be discussing the difference between common law and marriage. While many people believe there is a vast gulf between these two relationships, they are actually very similar. If a marriage or common law relationship breaks down, there can be issues of spousal and child support. The only difference in terms of support is the act that is used; in the context of a divorce couples would be governed by the Divorce Actand the Federal Child Support Guidelines, in the case of a separation after a common law relationship the couple would look to the Family Law Actand the Ontario Child Support guidelines. The requirements for making out a claim for support are the same regardless of the act, and the amounts listed in the guidelines are also almost identical. There is no real difference between common law and marriage in terms of support claims.

This is in contrast to the division in property, where there is a stark difference between a marriage and a common law relationship. When a marriage breaks down the Family Law Act provides the couple with a regime to divide their assets; the assets and liabilities of each spouse at the date of marriage and the date of separation will be used to calculate a payment from one spouse to the other. The Family Law Act attempts to ensure that each spouse gains an equal benefit from the marriage. A common law relationship, on the other hand, has no division of property regime. If a person wants to make a claim for property in a common law relationship, they must make a trust argument. These arguments are more difficult to make out, and can become very time consuming and expensive to litigate.

Another difference is how the rights spouses have to the matrimonial home. In a marriage, even if a spouse owns the matrimonial home fully, there are restrictions on their capacity to alienate the home. According to the Family Law Act, both spouses have an equal right to possession of the matrimonial home; regardless of whether or not they own the home. Additionally, under the Family Law Act a spouse can apply to the court for an order for exclusive possession of the matrimonial home. This is not determined by who owns the home, and can even result in the person who owns title to the house being forced to leave.

A common law spouse has no similar rights to the matrimonial home; they may be able to make out a trust claim against the home but they do not have a legal right to the possession of the home in the same fashion as a married couple.

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