Common-law or Married? It does make a difference when you’re separating

By Lauren Conti  |  September 21, 2020

Lauren M. Conti

Your common-law relationship differs from a marriage in some significant ways when you separate from your partner. In other aspects, it’s treated as if you were a married couple. Let’s take a closer look.

1. Divorce

If you were married, you will require a divorce if you want to marry again. If your relationship was common-law, you are free to marry.

2. Canada Pension Plan (CPP) Credit Split Timelines

The CPP contributions you and your spouse or common-law partner made during the time you lived together (whether married or common-law) can be equally divided after a divorce or separation (called “credit splitting”). If you were married, and separated on or after January 1, 1987, there is no time limit for applying for a credit split (unless your spouse dies, in which case you must apply within 36 months of the date of the spouse’s death). Other timelines do apply if you separated prior to January 1, 1987.

On the other hand, if you were common-law and you separated on or after January 1st, 1987, you must apply to split CPP credits within 48 months of the date you began living apart (unless your former common-law spouse is still alive and agrees in writing to waive the 48-month time limit).

Whatever category you fall in, this is an important issue that you should discuss with your family lawyer or tax advisor prior to proceeding, as there can be negative outcomes for you if not done properly.

3. Property

Only married spouses have an automatic claim for “equalization of net family property.” This means equalizing the value of all of the property that was accrued during the marriage. In other words, each person’s net family property value (NFP) is calculated, with the person with the higher NFP paying the person with the lower NFP half the difference between the two to “equalize” their net family properties. It is important to note that this particular approach to property equalization, which falls under Ontario’s Family Law Act (which is provincial legislation), is specific to persons resident in Ontario.

You will need to gather information with respect to your debts and assets on both the date of marriage and the date of separation, as these are the important “snapshots in time” for completing the calculation. What you owned on date of marriage is “deducted” from your net family property (with certain exceptions), so it is important that you gather the best evidence possible to support this information.

There are a variety of factors to be considered in calculating each person’s net family property, with several of these being very legally technical in nature, so you should get the advice of a lawyer who can review this issue with you early on, to see if some of these may apply to your situation (for example, some inheritances and/or gifts from third parties may be “excluded” from your net family property, with certain cautions, while date of marriage assets may be “deducted”). These exclusions and deductions can be lost if not handled properly (for example, if a cash inheritance has become “co-mingled” with joint funds of the parties), which is why it’s important to seek legal advice. There are many issues like this that can make a significant difference to the outcome of your matter, if not handled properly right from the start.

There is a time limitation to claim equalization (after which you may lose the right to pursue your claim), which is the earliest of:

  1. Six years after the date of separation; or
  2. Two years after the date of divorce (if one has been granted by the court); or
  3. Six months after the death of one of the parties.

In contrast, property rights are different for common-law relationships. There are no property rights that are legislated for common-law spouses and there is no statutory claim for “equalization of net family property” available to non-married spouses. Instead, assets and debts are divided based on ownership (i.e. if you are joint owners of an asset you are both entitled to half the asset, unless you had an agreement in writing stating otherwise, and if you are both named on a debt you are both liable for it until it is paid or your name is removed).

It may be possible to make a claim against your common-law spouse’s assets (such as real estate, a business interest, or a defined benefit pension) if you can show that you have made a contribution to the asset (either monetarily or by some other means, such as your effort, sometimes referred to as “sweat-equity”). These are known as “equitable” claims, and are defined by case law and not statutes. Because of this, these types of claims are often complicated and have a lot of factors to consider, so it is important to speak with a lawyer who can talk to you about whether or not you are able to make one or more of these claims, what factors must be considered, and what evidence you should be gathering to support your claims.

4. Health Benefits

Your eligibility for coverage under your ex-spouse’s health care benefits may vary depending on whether you were married or common-law, but it very much depends on the nature of the coverage and, specifically, the definition of “eligible spouse” in the specific plan. It is much more common for plans to cover a married spouse who is living separated from the plan member than a common-law spouse who is living separated from the plan member, but it will be necessary to check the plan coverage and/or contact the benefit provider to confirm the details of the specific policy. Some policies even require specific wording in Agreements and/or Court Orders to continue coverage for a former spouse and, in rare cases, this is even possible past the date of a divorce. Therefore, it is extremely important to confirm the required wording (if any) and advise your lawyer of specific requirements.

5. Spousal Support, Child Support, Custody and Access

When it comes to child support, custody, and access, the law is the same whether you were married or common-law. For common-law spouses, you could be eligible for spousal support (you may have heard it called “alimony” on American TV shows) if you have lived together continuously for at least three years, or if you have a child or children together.

It’s essential to get a good understanding of the differences between common-law and married relationships in the event of a separation. Get in touch with us at Henderson Family Law to speak with one of our family lawyers about your specific situation.

DISCLAIMER:

This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.

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