Getting Married? Know the legal consequences.

In Ontario, there are some significant differences between common law and married relationships.

Property

If you are married and subsequently separate, you essentially share the net worth you accumulated while you were together, regardless of legal title or the circumstances of acquisition (with some exceptions). The spouse who accumulated less during the marriage is entitled to a payment or property transfer from the other spouse equal to one-half of the difference (“equalization payment”).

If you are in a common-law relationship and separate, the general rule is that each spouse keeps the assets that are in their name, jointly owned property is divided 50/50, and there is no “equalization payment”. If you want to make a claim related to your spouse’s property, it is made under common law principles of trust and equity. These claims may involve proving how an asset was acquired.

Matrimonial Home

If you are married, the home you ordinarily reside in as a family is the “matrimonial home” (and you can have more than one). Regardless of whose name is on title, both spouses must consent to any sale or encumbrance, and both spouses are entitled to continue living there after separation until a court order or agreement says otherwise.

If the matrimonial home is the same property on the date of marriage and the date of separation, the entirety of the equity is equalized, not just the increase since the date of marriage.

Estate Planning

If you die without a Will (“intestate”), your spouse is treated differently if you are married or common-law. If you are married, your spouse is entitled to a portion of your estate. If you are living common-law, your spouse will not receive a share of your estate.

If you are married and die with a Will, your spouse can elect to claim an equalization payment instead of what you left to them. This has the effect of forfeiting all entitlements under the Will unless the Will clearly specifies otherwise. In addition, the surviving married spouse cannot act as the executor.

Your Will and all gifts in it remain valid upon separation unless specific provisions are included, regardless of the nature of your relationship. But if you are legally married, you can obtain a divorce, at which point all gifts to your former spouse are automatically revoked.

There are some similarities as well.

Canada Pension Plan

Regardless of whether you were married or common law, you may apply for a division of the Canada Pension Plan credits you each accumulated during the relationship, which can impact the CPP payments you receive. There are different deadlines for claiming this division depending on whether you were married or common law.

Spousal Support

A former spouse may apply for spousal support regardless of the legal nature of the relationship. However, if you were common-law, the relationship must meet certain criteria.

For people separating from common-law relationships, you must have lived together as a couple for 3 years, or, if you had a child together, for any duration if the relationship was one of some permanence. Married couples do not have to meet this test.

And some things are the same.

Child Support

Children are entitled to child support regardless of the legal nature of their parents’ relationship. This includes children from prior relationships for which a stepparent may be found liable for support.

Dependent Relief

Both married and common law spouses may apply for support under the Succession Law Reform Act if the deceased has not made adequate provision for their proper support in their Will.

Health Care Decisions

For purposes of health care consent, a married spouse and a common-law partner both have equal status in the hierarchy of decision makers. Spouses and partners are treated equally under the law and have an equal right to consent or refuse medical treatment on behalf of their spouse/partner.

If you are separating from either a legal marriage or a common-law relationship, your Power of Attorney for Personal Care continue to be effective after your separation. It also continues after a divorce.

Pre-Separation Planning

Regardless of the legal status of your relationship, you can enter a contract that defines some of your rights and obligations upon its end by separation or death. In Ontario, you can sign a “Cohabitation Agreement” or a “Marriage Contract” that addresses spousal support, property division, and the education and moral training of your children.