same-sex-family-law-common-law-marriageRemember the expression, “whatever is old is new again”? This seems to apply not just to fashion but to societal interests and concerns as well. Or maybe it’s just that newer generations need to find their own path forward. Whatever the reason, there still seems to be some confusion and misinformation regarding the two parallel and far reaching, relatively recent changes to our marriage laws. One area concerns common-law or cohabitation vs formal marriage, while the other focus is on same-sex relationships, both common-law and marriage. Let’s revisit these basic laws which didn’t even exist a mere 15 years ago.

How the marriage law applies to same sex and hetero couples

The short story – There’s no difference between same sex and hetero couples with regards to either common law relationships or marriage. What applies to one applies to the other. A spouse is a spouse is a spouse. (M v. H in the Supreme Court Ruling).

Here’s why: In 2003, the Ontario Court of Appeal redefines the definition of marriage as the “voluntary union for life of two persons to the exclusion of all others,” but to be considered legally married, the law also requires the “two persons” to participate in a ceremony or form of marriage that it recognizes as valid.

The good news for many Ontarians was that the phrase “two-persons,” by definition immediately is inclusive of same-sex couples. Thus hetero or same sex, there is no legal difference in our marriage laws. The irony was that the divorce laws then needed updating as well, and two years later, in 2005, the Divorce Act was indeed amended to allow same-sex couples to obtain a legal divorce.

How the law applies to same-sex and hetero common-law relationships and marriage

A careful reading of that 2003 law reveals that it also distinguishes between common-law relationships and marriage, the determining factor being whether or not the couple participates in a marriage ceremony recognized as valid in Ontario.

Whether that is good news or not likely depends on the wishes and circumstances of the individual couple. For example, couples who deliberately don’t marry because they don’t want to be subjected to the regulations of marriage appreciate that they can preserve their status. However, other couples who simply believed that all aspects of marriage would apply might be upset to find that this isn’t necessarily the case.

A closer look at the differences between common-law and married couples, hetero or same sex

1. One year or three?

It’s a misconception that after one year of cohabitation common law relationships are legally considered to be the same as marriage. For some government agencies such as the Federal Tax Act, this is correct, but in most circumstances the law requires the couple to cohabitate uninterruptedly for three years, unless, of course, there is a child of this relationship, in which case for the purposes of child custody, child access and child support only, the relationship is considered to be the equivalent of marriage.

2. Child and spousal financial support for common-law and married couples?

As mentioned above, there is no difference between common law and married couples when the issue concerns children and child support, regardless of the time element. However, this does not apply to spousal support: there is no obligation of spousal support in those first three years. This is a significant difference.

3. Property Division?

This is another major difference in the law for common-law relationships and married couples, again, regardless of whether they are same sex or hetero. Simply put, the concept of the matrimonial home does not apply to common law couples, nor does the right to share in other property. Similarly, a spouse of a long relationship whose partner dies is not necessarily entitled to any insurance or death benefits.

4. Is there a ‘work- around’ for the property division limitation?

Yes, there is, but first a word of explanation about these laws is in order: it isn’t discriminatory or incompetent in the area of common law relationships and matters of property. It recognizes that some people remain in these relationships not necessarily because they are “free spirits,” but because they don’t wish the entanglements of marriage. To extend the provisions of the marriage contract to these couples would deprive them of their right to choose, and ultimately would result in common law and married relationships differing in name only, and of course these couples always have the option of marriage if they wish its legal benefits.

But the law does provide a number of remedies for couples, same-sex or hetero, who wish to remain in common-law relationships.


The property division exclusion is immediately resolved by joint or co-ownership. If the couple owns their domicile jointly, then there is no question of matrimonial home, should they separate.

 b)The Will:

This really requires no explanation. Whether a couple is married or living common law, the will directs the deceased’s wishes with respect to money and property. Both partners should have their own wills.

 c)Cohabitation agreements:

This sets out all concerns and arrangements, both financial and otherwise, for the duration of the relationship and what will happen should it end.

The partner of a common-law relationship that ends, without either co-ownership or an agreement, who nevertheless decides to make a claim against the property has one more option available, which is termed “equitable relief.” This exists mainly to help protect the partner of a long- term relationship who has contributed over the years but has been left in a vulnerable financial state. It is a difficult process and even if successful, the person may have no provision for immediate life necessities. It’s best to avoid being in such a precarious position, and it can be through the use of any of these remedies.

It might seem counter intuitive to seek the advice of a lawyer to make these arrangements when you’re just beginning a relationship, but consider that people in the prime of life take out life insurance, travel insurance and even long-term disability insurance.

Why not take out “legal insurance?” A lawyer can help you to protect yourself and your loved ones. If you’re entering into a relationship and need professional, legal advice concerning any of these issues, please contact Howard Nightingale Professional Corporation, 416 663 4423 or 1-877 224 8225.

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