Difference between Common Law and Marriage

You have more rights and responsibilities when you get married. If you are not married, you don’t get some rights no matter how long you and your partner have lived together. You have to go through a legal marriage ceremony to be married.

There is no real difference between common law and marriage in terms of custody, access and support claims

Married couples and common-law couples usually have the same rights related to children including rights to custody, access and child support.

The only difference in terms of support is the act that is used. The Divorce Act and the Federal Child Support Guidelines govern a divorced couples, however, the Family Law Act and the Ontario Child Support guidelines govern a common law couples. 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 are different rights between a marriage and a common law relationship to the assets and liabilities, matrimonial home

Assets and Liabilities

When you get married, the law assumes you are in an equal partnership. When a marriage breaks down the Family Law Act provides you and your partner with a regime to share assets and liabilities. 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.

A common law relationship, on the other hand, has no regime to share assets and liabilities. Common-law partners only have to share the property you own together. You can try to claim a share of your partner’s property in some situations, but it can be very hard to prove you should get a share.

Matrimonial Home

Only married couples can have a matrimonial home. Common-law couples cannot have a matrimonial home, so they have different rights.

In a marriage, you and your partner have an equal right to stay in a matrimonial home and right to claim a share in the value of a matrimonial home as part of an equalization payment rule even if a spouse owns the matrimonial home fully. Additionally, under the Family Law Act a spouse can apply to the court for an order for exclusive possession of the matrimonial home. This can even result in the person who owns title to the house being forced to leave.

If you were living common-law, then your right to stay in the home after you separate usually depends on who owns the home or whose name is on the lease or rental agreement.