Marriage and Cohabitation

Toronto Family Lawyer for Marriage, Cohabitation and Common Law Spouses

Marriage is a contract entered into between two consenting spouses, heterosexual or same sex, the terms of which are defined by law. In Ontario, the formalities required for a legally valid marriage are set out in the Marriage Act, R.S.O. 1990. The rights and obligations associated with marriage are set out in the Family Law Act, R.S.O. 1990. As a general rule, Ontario law treats marriage as a form of partnership where each partner is presumed to contribute equally to the marriage. Married spouses are entitled to seek support from each other, to an equalization of property upon dissolution of marriage, and to a right of possession of the matrimonial home. Obviously, additional rights and obligations arise with the birth of children.
Common Law spouses are not married. Much to the surprise of many, common law spouses do not have the same rights and obligations of those who are married. In Ontario, the Family Law Act identifies where common law spouses are treated similarly to married persons and where they are not. Common Law Spouses are entitled to pursue spousal support from one another, because as section 29 of the Act states, “spouse” is defined as both married persons but as well “two persons who are not married to each other and have cohabited continuously for a period of not less than three years or in a relationship of some permanence where they are the natural or adoptive parents of a child.” Common Law spouses are not defined within the meaning of “spouse” under the Act for the purpose of equalization of property. Common Law spouses are therefore not legislatively entitled to a division of property.