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Preventive Law

Is There a Difference Between Being Married and Common Law?

By July 19, 2021No Comments
A Common Law couple stands in front of their new home

We have come a long way from the days when the only “socially acceptable” way to be in an intimate relationship with another person was to marry them (and, of course, only since 2005 was legal marriage opened up to people of the same sex).  Today, there are more choices available to couples than ever before.  Consider for a moment the vibrancy that exists in our communities as a result of the differences in how people structure their living arrangements, share financial resources, become parents or choose not to become parents, and even in the ways that couples refer to each other (partner, spouse, husband, wife, significant other, etc).    

Ideally, the choices that people make about how to structure their intimate relationships are rooted in their own values, traditions, and beliefs.  Importantly, these choices are almost never about a careful consideration of the legal implications of their choices, or in other words, the legal rights and responsibilities that they acquire as a result of any particular choice.  All too often, people only come to learn about the legal consequences of their choices after a death or during a separation.  This is precisely the moment when it is too late to do anything about it.  It does not have to be this way.  

Take time to learn

Taking the time to learn about how the law interacts with your personal relationship choices unlocks the door for you to design the outcome you and your partner/spouse/husband/wife/significant other would want.  This is how we can use the law as a tool that will support our plans, as opposed to letting the law dictate our choices.  

There IS a difference between being married and being common law. 

Here is what most people don’t know:  There IS a difference between being married and being common law.  The most important difference is in how your property will be treated if you separate or if a spouse dies without a Will.  

If a married couple separates, each spouse has an absolute entitlement (with a few exceptions) to share equally the value of the property that accumulated during the course of the marriage.  If a common law couple separates, there is no such entitlement.  Instead, each spouse leaves the relationship with the property that they legally own, with the possibility to make other claims when this result would be blatantly unfair.  This means that for married couples, property that was acquired during the marriage will be divided equally regardless of who owns what.  For common law couples, legal ownership dictates how property will be divided.  This is an important difference. 

If a married spouse dies without a Will, the surviving spouse has an absolute entitlement to the estate.  If the deceased left no surviving children, the surviving spouse will receive the entire estate.  If the deceased dies with surviving children, then the estate will be shared between the spouse and the children with the spouse receiving the largest portion of the estate.  If a common law spouse dies without a Will, there is no such entitlement.  Instead, the surviving spouse only has the possibility of making a claim to the estate seeking support as a dependent.  This means that for married couples, if a spouse never makes a Will, the surviving spouse will receive the majority, if not all, of the assets that form the deceased’s estate.  For common law couples, there is no such provision for a surviving spouse.  This is an important difference.

You have choices

In either case, the law also provides opportunities to alter these outcomes.  For example, a married couple may choose to “opt out” of the laws that would apply to them if they were to separate or in the event of a death and design a different outcome that is more aligned with their values, traditions, and beliefs.  Similarly, a common law couple may choose to “opt in” to the laws that apply to married spouses should they separate or when one spouse dies.  This is done by creating contracts that will override these general laws.  For some, simply investing in the process of creating a Will is sufficient to alter the outcome that the law would otherwise provide.  For others, a contract done in combination with a Will is required.  Regardless of the particular legal tools that might be needed to secure the desired result, the important thing here is that you do have a choice.  

You have the freedom to design your intimate relationships to fit your particular values, beliefs and traditions and you also have the freedom to design your own legal rights and responsibilities in your relationships as well.  This requires finding out how our laws apply to your situations and asking yourself whether this outcome is the right one for you. If it isn’t, we can create legal tools together with your spouse, partner, husband, wife, significant other to design a result that is better suited to your circumstances.

We invite you to get in-touch with one of our legal experts and start building the tools you need for life.