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Important to understand legal rights as common-law couple

Although more Canadians no longer think of marriage as “necessary” for two people who want to spend their lives together, Toronto family lawyer Laura Paris says common-law couples need to appreciate that matters can become more complicated in the event of a separation.

A recent Angus Reid poll shows 47 per cent of respondents said being legally married is important for a couple that plans to spend the rest of their lives together, while 53 per cent said “marriage is simply not necessary.”

Age plays an important role in this belief, with younger Canadians more likely to disagree that marriage is as relevant as it’s ever been. These findings correspond with a well-documented pattern of millennials waiting longer to tie the knot, or not marrying at all, the report says.

Paris, an associate with Shulman Law Firm, says there has definitely been a societal shift away from marriage as “the only option” when it comes to having a family. As well, the spike in the divorce rate over the last few decades may cause some people to be leery of getting legally hitched.

“People may have a somewhat misguided belief that by choosing to not marry and instead enter into a common-law relationship, they are saving themselves from the grief and dismay of dealing with a divorce in the event the relationship fails,” Paris tells AdvocateDaily.com.  

“Unfortunately, this is not the reality. While a divorce is not applicable to common-law relationships, the issues that arise from a breakup are the same,” she says.

Where they differ, Paris says, is how property and assets are divided upon the breakdown of the relationship.

“Couples who chose not to enter into marriages need to appreciate in making that decision that matters can become much more complicated in the event of a separation. Specifically, as it relates to the division of property, as unlike married couples who assets are equalized, there is no automatic division of property in common-law relationships, and the ‘default’ position is that assets are divided pursuant to ownership,” she says.

Dividing assets by ownership does not always accurately reflect the reality of each party’s contributions to the relationship, and their ultimate entitlements upon its breakdown, Paris says.

“In a marriage, assets are divided 50/50 — with some exceptions — as the legislation has recognized the union as a joint economic partnership where each party takes on roles within a family unit,” she says. “While similar situations may take place in common-law relationships, it is up to the person seeking the entitlement to prove that the union was, in fact, a joint economic partnership, and as such, they should be awarded a share in property or otherwise.” 

She recommends that common-law spouses enter into a cohabitation agreement, where they will have the opportunity to determine how issues such as property division or support will be dealt with in the event the relationship ends.

“While some may see this as an unnecessary and expensive exercise — the reality is that it will save couples significant time and expense in the future and allow for a much cleaner and more structured separation,” Paris says.

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