Living Together Does Not Constitute Common Law Marriage

Just because you and your significant other have lived together for a few years doesn't mean that you have a marital relationship under the law. Each country - in fact, each state, province and territory - has its own definition of marriage and its own laws and rules governing what does and does not constitute a legal marriage. Simply because you live together doesn't make you married, even if you have children together.

Common Law in the United States

Only a few U.S. states and the District of Columbia still recognize common law marriage, and each state has its own requirements which must be met in order for a couple to be legally recognized as a married couple. So the act of cohabiting is not sufficient by itself to make you legally married in the eyes of the law. You must "hold yourself out" as being married (e.g. by representing yourself as spouses and filing joint tax returns), and you should sign a statement or agreement which specifically states that you intend to be married.

If you cohabit with a partner, it is essential that you find out whether the state you live in recognizes common law marriages, and what the legal requirements are. Understand that if you live in a common-law state which legally recognizes your status as being married, you will need to get a divorce if the relationship comes to an end, just the same as if you had obtained a marriage certificate.

Same sex couples are not always recognized as being married even if they meet all the legal requirements for common law marriage.

Common law partners do not have the spousal or matrimonial property rights that married spouses have. If your partner's name is on the title to your home and yours is not, your partner can sell the home and pocket the money without your consent because you have no right to the property. You may also have no inheritance rights if your partner should die without a will, unless you can prove that you were in a valid common law marriage. And if your relationship is not recognized as a marriage, your partner's family could exclude you from medical decisions if your partner becomes incapacitated and there is no power of attorney naming you as his or her attorney-in-fact.

Canada Does Not Have Common Law Marriage

There is no such thing as "common law marriage" in Canada, no matter how long you have lived together. But continuous cohabitation of two partners in a conjugal relationship, or the act of having or adopting a child together, gives rise to legal rights and obligations under the status of "living common law". For instance, common law partners are eligible to receive CPP survivor benefits and OAS survivor allowance upon the death of their partner. Common law partners must file common law income tax returns, and they can claim the same tax credits as married couples.

A cohabiting couple must live together for a certain period of time in order for the partners to have spousal rights, although this time requirement may be reduced or eliminated if the couple has a child together by birth or adoption. The time period differs from province to province, and the time periods may be different depending on the purpose. However, federal tax laws only require a couple to live together for 12 continuous months to qualify as "living common-law".

Canadian law makes no distinction between common law unions when it comes to gender. The same legal rights and responsibilities apply to same sex couples as to opposite sex couples. If a common law marriage ends, the Court determines child custody and support in the same manner as it would for a divorcing couple. However, spousal rights (support rights, property rights and estate rights) differ from province to province. In Ontario, for instance, if a common law partner dies intestate (without a will), the surviving partner has no rights to the deceased partner's estate. But in Alberta, common law partners have the same inheritance rights as married partners.

The Importance of Written Agreements

To sum up, no matter where you live the law may or may not protect you if your relationship ends or if your partner dies or becomes disabled. It's best to be pro-active and set out your respective property rights and obligations to your partner in a Cohabitation (Living Together) Agreement. A Cohabitation Agreement clearly spells out what property each partner brings into the relationship, how ownership of the property they jointly purchase during the relationship will be divided, and how it will be distributed if the relationship ends. You can also include provisions for child support, custody, spousal support, household debts, and responsibility for property maintenance. In addition, you should make a Power of Attorney appointing your partner as your attorney in case you become incapacitated and can no longer make medical, financial or personal decisions for yourself.