Marriage: What if you don’t say “I do”?

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By Mahtot Teka

The first time I heard the term “partner”, it gave me pause. The nice lady who was telling me about her “partner” continued with her story. From the context, I understood the “partner” was something along the lines of a boyfriend or a husband. I was very curious why she didn’t call him that.

What else can a man be, right? He is either a boyfriend or a husband. If she meant a boyfriend, I asked myself, are they in an extremely serious relationship? If she meant a husband, it was very unaffectionate and cold to call him a “partner”. It sounded too formal. I wanted to ask her. Alas, my meddling immigrant uncertainty crept in. What if this was too personal to ask in Canadian culture?

After a few years of living in Canada, I realized that the lady was not cold and that a man doesn’t have to be called a boyfriend or a husband. It turns out that she was in a common-law union and he was her common-law partner.

In my culture, unlike in Canada, you don’t openly disclose a common-law union. Like in many other non-western cultures, it is not widely accepted. A study conducted by Statistics Canada in 2003 says, “In many Western countries, where increasing individualism and lower formal religious commitment are the norm, there is likely to be a greater approval of common-law unions.” I say, there is indeed!

What is a common-law union?
Common-law union is usually understood as an informal marriage formed by two consenting people. However, Malcolm C. Kronby in his book Canadian Family Law says, “The parties [common-law partners] may indeed behave as if married, refer to each other as if married, be recognized or assumed to be married in their community. In fact, they are not married, no matter how long they have lived together, no matter how many children they have.”

Gisele Bettencourt, a family lawyer in Toronto, says, “People get confused about common-law marriages all the time. And I think that the government has something to do with it because for some purposes the government will call you common-law spouse so then you have rights and obligations with respect to that. But for other purposes, as common-law spouse you don’t have any rights.” She explains that commonlaw partners are considered by the government the same as married couples when it comes to income tax; slightly different when it comes to spousal support; and completely different when it comes to property division.

What are the similarities?
◦ Principal residence (property that can be sold without paying tax on the increase in value).
Bettencourt says that common-law partners can only have one principal residence just like married couples do.
◦ Child Adoption
“Both married and common-law couples can apply to adopt a child,” says the Legal Services of BC.
◦ Child Support
When it comes to child support, partners have the same obligation to the children as married couples. The Legal Services Society of BC states, “When parents separate, the law may require one parent to pay money to the parent who has custody to help provide for the daily needs of the children.”

However, despite the similarities, common-law union is not exactly like traditional marriage. The study, conducted by Statistics Canada in 1997, found out “In many provinces, statutory rights and support obligations have been established for cohabitants [common-law partners], but they are still significantly different from those that apply to married people.” and it also comments that the legal system becomes involved only when the union is dissolved and not when it is established.

What are the differences?
“If you are in a common-law relationship, the relationship ends as soon as you stop living together. You do not have to get a divorce,” says the Legal Services Society of BC.
◦ Property
Once separated, Ontario family law says, “Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship.” The increase in value and the property itself belongs to person who owns the property.
◦ Matrimonial Home
Bettencourt says that there is a huge difference when it comes to division of property. For example, your partner has no right to the matrimonial house if the house is in your name. However, if you are a married couple, the matrimonial house automatically belongs to both even if the house is under your name.
◦ Support
When a common-law relationship ends, you are entitled to spousal support as in marriage, but only if you meet certain requirements. “If you were in a common-law relationship, you must have lived together for at least two years to get a court order for spousal support,” says the Legal Services Society of BC. (Time limit varies slightly across the provinces.)

Bettencourt advises that, legally speaking, it is cheaper and easier if you are married in the event of divorce or death than living common-law, even though people often think the opposite. The study by Statistics Canada found out, “Generally speaking, in the case of a dispute, common-law partners currently have more difficulty than married couples when it comes to the recognition of their rights in court.”

What do you need to do to protect yourself?
Bettencourt says that when you live together, you make decisions just like married couples do, thinking that the only difference is the money you have not spent on a wedding. “But then 10 years down the road you separate, and then that is when you learn: ‘Oh shoot, I am not entitled to the house. My name is not on it. I am not entitled to part of his pension, the pension that was accumulated during the time that we were together, as I would have been if we were married. I am not entitled to his RRSP, as I would have been had we been married.’”

How can you avoid such unwelcome surprises?
◦ Find out your rights and obligations
Researching about your rights and obligations before you enter into the relationship is one thing you can do to protect yourself. “I think it is really important to know what the law is. I would take the time to meet with a [family] lawyer, and really find out what your rights and obligations are, because it is two-sided. There are rights, there are obligations to support and all these kinds of things, so that you know where you stand and so that you know how to protect yourself too,” advises Bettencourt.
◦ Sign a co-habitation agreement
She also advises that people sign co-habitation agreements that set out each party’s expectations, because even though you want to have different ending of your relationship, having a contract helps lower your legal fees when the relationship ends. Ontario family law says, “A cohabitation agreement can spell out what you both want your financial and family arrangements to be. It can say who owns the things you buy while you are living together. It can say how much support will be paid if the relationship ends and how your property will be divided. It can say who has to move out of the home if the relationship ends.”

Yes, it is very important to have a co-habitation contract and to learn about your rights and obligations. But the question is, how do you raise the topic that begins with “in the event of a separation or death” when you are in love and about to enter into a relationship?

It helps to frame the topic in such a way that your partner sees that it is in her or his interest too. Bettencourt says, “If something happens to you, you want to know that your partner is going to be OK. So if you take it from that angle, then of course you love the person then yes you would want them to be OK.”

However uncomfortable the topic is, in the event of a separation or death (There I said it!), a co-habitation contract would make an unpleasant ending a little easier.

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