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Common-law not the same as marriage

Debate over changes to family law rules in British Columbia highlights the importance for couples – married or common-law – to know their rights and obligations when it comes to separation, says Oakville family lawyer and mediator Cathryn Paul.

This week, B.C. introduced its new Family Law Act, which treats common-law couples living together for two years the same as married couples for purposes of property division if they split up, CBC reports.  Read CBC

Under the Act, common-law couples share the same legal rights as married couples, including a 50/50 split of shared debts and assets, excluding pre-relationship property, inheritances and gifts, CBC reports. In the past, people who had been living together for decades were not entitled to share in assets accrued during the relationship, the report says.

“In Ontario, only legally married spouses share property upon a breakdown of a relationship,” says Paul. “Common-law spouses may have claims to spousal support, and in some cases may assert trust claims, but there is no right to equalization of property. The thought is that by choosing to marry, parties are ‘opting in’ to a property-sharing regime. It’s probably not the first thing that they think of when deciding to marry, but that's what it is.”

Paul says many common-law couples are surprised to find that when they separate, they do not have the right to equalize property.

“There is a very common misconception that common law is just the same as married - it is not,” she says.

“Especially in long-term relationships, when a couple has raised children together, and been involved in a joint venture of bettering their financial positions, it can be extremely hard on one party if the other is the titled owner of most of the property or investments.”

Paul says, “There have been many cases when an imbalance results to common-law couples because there is no equalization of net family property. However, imposing property sharing on all common-law couples would lead to complications for the many short-term relationships when there is no commitment similar to that of marriage. For that reason, the two-year time frame prior to property sharing for common-law couples in the B.C. legislation makes sense.”

As the law stands in Ontario, married couples can opt out of the property-sharing regime through a marriage contract, says Paul. Common-law couples, she adds, can choose to hold their property jointly rather than individually, to better approximate equalization of net family property.

“The big problem is that people generally do not turn their minds to a possible separation when they marry or move in together,” she says. “It's not a topic easily raised with a new partner and is not a comfortable thought. However, at the very least, people need to understand what their rights and obligations are if the relationship does not work.”

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