I’m wondering if anyone here has a better understanding of Canadain law than I do, which really shouldn’t be that difficult.
I have heard wildly varying tales of what the time frame is for Canadian co-habitating couples to be considered eligable for common-law marraige, from 3 months to a year. Of course, a year seems like a short time to me, since growing up in the States, I was told it was 7 years, or so I thought.
Anyone else have any idea?
I think if would depend on what you needed the marriage to be eligible for. There are less strict requirements for you cohabitation to be eligible for Domestic Violence prosecution than say Insurance Benefits. And probably an entirely different requirement for probate issues or visitation at hospitals, etc.
Maybe Canada is different, but you mentioned the US too. And there isn’t anything about common law marriage or cohabitation that is universal across the board. For some things you’ll be treated as married, but for probably the majority of things, it’s a worthless classification.
No, being married under the common law in those US states which recognize it is every bit as valid as marriages contracted under the marriage statutes. In those states which recognize CL marriage, the basic requirements for recognition are consent, cohabitation for a certain length of time (usually seven years) and representing themselves to the community as married (and accepted as such). Couples married under the common law who move or travel to a non-CL state must, under the Constitution’s Full Faith and Credit Clause, be recognized as married by the state (unless the marriage is against the public policy of the state). CL marriages and statutory marriages are legally indistinguishable in the US.
Gah. My source for the “seven years” comment was notes from a Family Law class I took a few years ago. In reviewing my own link I see that there is no defined length of time in any state. I blame my professor.
A common law marriage in Canada is recognized as two people, either different sexes or the same sex who have lived together, as a couple, for a minimum of one year.
That’s to receive benefits from the govt. At my job, 6 months cohabitation is the requirement.
Generally speaking tho, one year is what is required by all government agencies.
Neat. Thanks. I didn’t realize any state did that. Hmmmm.
Why not just go to the court house and file a stupid form though? It’s only one page and takes like 15 minutes tops.
Well, you save the filing fee…
The term required is less than one year if you have children together.
Ooh, another US-born Ottawa resident! Whee! Hello!
It varies a LOT depending on what it’s for. For immigration purposes, my boyfriend and I will be in a common-law relationship after one year of cohabitation. For OSAP (student loans), it’s three years or a kid together. It’s best to look it up for each individual thing you think it might affect - they generally seem to define it for you.
Whoops, I just did a search on your posts and found out that you were actually born in Canada. Sorry!
I also found out that you seem to be pretty cool. We should hang out sometime if it isn’t too creepy.
Comon-law marriage evolved, like the rest of the common law, in the agricultural society of pre-industrial England. It might be years for a circuit-riding JP to hit your little hamlet, so there had to be a way for a marriage to be formally valid without prior government sanction. (Esp. since at that time the recognized that to have sex outside of wedlock meant you were going to hell.) Nowadays, most states have abolished it, and that continues to be the trend. But it’s still useful in rural areas where it takes the better part of a workday, or worse, to get to city hall and file your paperwork. It’s similarly useful for working people in urban environments who cannot afford to lose the day’s pay to sit in City Hall for a few hours.
–Cliffy
I’ve been looking for info on this too, I’m waiting to get something a bit more official (as per where to get information) but here’s what I’ve found so far.
wikipedia has a nice little entry on common law marriage, and I looked up the relevant parts of the Ontario Family Law act myself so that part is accurate for sure.
Relevant bits from article:
"Canadian federal law does not have “common law marriage”, but various federal laws include “common law status,” which automatically takes effect once two people (of any gender) have lived together in a romantic relationship for one full year. "
"In Ontario, a common law province, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having ‘cohabitated in a relationship of some permanence.’ "
I’ll post more once I’ve heard back from lawyer friend.
Meh, I feel US born, spent so much of my childhood there. And I’m half American, so it’s all good.
And thank you, I’ve never really considered myself cool. Hanging out would not be creepy, just send me an e-mail (should be in my profile)
Ahhh, doesn’t marriage in Canada fall under Provincial legislation?
As far as I know, the solemnation of marriage is a provincial responsibility while the determination of who is eligible to marry is a federal responsibility. At least, that’s what we were hearing during the debates about same-sex marriage. On the other hand, civil status is entirely a provincial responsibility. So there might be differences between provinces about the required time to consider that two people are de facto married. Also note that some provinces have enacted a system of civil unions.
So is there no paperwork or record for common law marriages? What does it take, then, for an official divorce?
Same thing as for any other divorce. Common law marriage is legally indistinguishable from statutory marriage in the US. Dissolution of a common law marriage must follow the same legal process as for a statutory one.
IME, no official divorce is necessary if you have had no official, on-paper marriage.
CUSTOMARY MARRIAGE / MARRIAGE VALID UNDER THE COMMON LAW IN CANADA
In Canada, customary marriage / marriage valid under the Common Law does exist, but only in very limited circumstances. Blanchett v. Hansell, [1944] M.J. No. 1 (Man…Ct.K.B.); Keddie v. Currie, [1991] B.C.J. No. 2871 (BCCA). Suffice it to say, if a couple of typical Canadians shack up and say they are married, that does not constitute a marriage. A lot depends on the customs of the culture, and for the most part, cultures in Canada do not have customary / common law marriage.
Inuit customary marriage exists. Re Noah Estate (1961), 32 D.L.R. (2d) 185 (also reported: 36 W.W.R. 577) Northwest Territories Territorial Court, Sissons J., 24 November 1961, http://library.usask.ca/native/cnlc/vol06/120.html
Have a read through the following excerpt from Noah, for it is illustrative of the cultural background, and of how, for better or worse, the European culture and laws are overlaid on the pre-existing aboriginal culture:
Indian customary marriage exists: Manychief v. Poffenroth, [1994] A.J. No. 907 (ABQB)
Aboriginal customary adoption exists: Casimel v. ICBC [1993] B.C.J. No. 1834 (BCCA)
For most folks who live together but who never went through a formal marriage, they are spouses, but they are not married.
MARRIED AND NON-MARRIED SPOUSAL ENTITLEMENTS AND OBLIGATIONS
When people live together in a conjugal relationship of some permanence, they gain certain entitlements and obligations. If they marry , they gain even further entitlements and obligations. These entitlements and obligations vary according to the provincial or territorial jurisdiction.
With respect to a couple splitting up, five issues frequently arise: custody, access, child support, spousal support, and equalization of net family property.
Ontario is fairly typical. It’s Family Law Act applies to couples who separate, be the married or non-married. Under Ontario’s Family Law Act, the entitlements and obligations concerning custody, access, child support, and spousal support would be the substantially the same regardless of whether or not the couple had been married, however, there would be a little less wiggle room to get out of paying child support if the parties were married, and the spousal support obligation would kick in upon marriage, but otherwise would not kick in until three years of cohabitation. Only married persons would have an entitlement to an equalization of net family property. This is where a lot of non-married people have a nasty surprise when they split from their spouses – they can make a trust claim, but that is a poor second to an automatic equalization had they been married. Family Law Act, R.S.O. 1990, c. F-3, as am., http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90f03_e.htm
Under the Canadian Divorce Act, which applies only to married couples who separate, the provisions for custody, access, child support and spousal support are somewhat similar to those under the Ontario Family Law Act. The Divorce Act does not deal with property. Divorce Act, R.S. 1985, c. 3 (2nd Supp.), as am., http://laws.justice.gc.ca/en/D-3.4/index.html
There is no common law right in Canada for a dependant to sue for harm done to the person supporting them (e.g. for a dependant spouse to sue the person who ran over her partner). To rectify this, the provincial and territorial jurisdictions have put laws in place that permit this. In Ontario, this right is the same whether the parties were married or not. Family Law Act, R.S.O. 1990, c. F-3, as am., http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90f03_e.htm
Dependant’s relief under Ontario’s Succession Law Reform Act can be sought from an estate without regard to whether or not the parties were married. Succession Law Reform Act, R.S.O. 1990, c. S-26, as am., http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90s26_e.htm
A final nasty surprise for unmarried spouses is that they are not able to claim a share of an estate, either under Ontario’s Succession Law Reform Act or its . Family Law Act. This brings us full circle back to why matters such as Noah and customary marriage / marriage valid under the Common Law are so important. Succession Law Reform Act, R.S.O. 1990, c. S-26, as am., http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90s26_e.htm ; http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90s26_e.htm
There are a host of other federal, provincial and territorial laws that affect couples, and many of them differentiate between married and non-married couples (and differ as to how long a couple must cohabit before being deemed to be spouses). This differentiation was key to the need for Canada to move forward to permit same sex marriage, so that all couples could have equal rights. Marriage for Civil Purposes Act
2005, c. 33, as am., http://laws.justice.gc.ca/en/C-31.5/270942.html
COMMON-LAW PARTNER / UNMARRIED SPOUSE COHABITATION TIME REQURIEMENTS
Federal legislation is moving toward calling married couples “spouses” and calling non-married couples “common-law partners.” Note that if a person were to be married by way of a customary marriage valid under the Common Law, that person would be a spouse, and not a common-law partner. For the most part, 1 year of cohabitation is the trigger for a couple to be common-law partners / unmarried spouses under federal legislation.
Ontario provincial legislation usually uses the term “spouse”, which always includes married partners, but may or may not include non-married partners, depending on the particular section of the Act in question. For the most part, part, under Ontario provincial legislation, 3 years of cohabitation is the trigger for a couple to be common-law partners / unmarried spouses, with notable exceptions being Workers Compensation (1 year), and the spouse in the house rule (3 months) that limits government assistance payments.
Following is a list of the time requirements for a couple to be considered common-law partners / unmarried spouses under the more frequently used Canadian federal acts Ontario provincial acts:
Canada Pension Plan, R.S., 1985, c. C-8, as am.: 1 Year. http://laws.justice.gc.ca/en/C-8/index.html
Child and Family Services Act, R.S.O. 1990, c. C.11, as am.:
living in a conjugal relationship (no time requirement). http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90c11_e.htm
Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am.: if a parent – deemed to be a parent if a child is born during a couple’s relationship of some permanence, or within 300 days following separation. http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90c12_e.htm
Criminal Code, R.S., 1985, c. C-46, as am.: 1 year. http://laws.justice.gc.ca/en/C-46/index.html
Divorce Act, R.S., 1985, c. 3 (2nd Supp.), as am.: only applicable to married spouses, which includes couples married through a customary marriage valid under the Common Law (but not common-law partners). If a couple were married through a customary marriage valid under the common-law, and if that custom also included provisions for divorce, then a divorce could also be had outside of the Divorce Act. The triggers for a divorcee under the Divorce Act are: 1 year of separation (a.k.a. no-fault divorce), or abuse, or adultery. http://laws.justice.gc.ca/en/D-3.4/index.html
Family Benefits Act, R.R.O. 1990, O. Reg. 366, as am.: either upon declaration by the spouses, or if there is a court order, or domestic contract, or right under the Family Law Act, to provide child or spousal support. http://www.e-laws.gov.on.ca/DBLaws/Regs/English/900366_e.htm
Family Law Act, R.S.O. 1990, c. F-3, as am.: 3 years, or in a relationship of some permanence if parents, but only as to custody, access, child support, spousal support, and dependant’s claim for damages when a supporting spouse is injured or killed. Not applicable to equalization of property. http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90f03_e.htm
Health Care Consent Act, 1996, S.O. 1996, Chapter 2, Schedule A, as am.: 1 year, or together as parents, or together with a cohabitation agreement. http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/96h02_e.htm
Human Rights Code, R.S.O. 1990, c. 19: living in a conjugal relationship (no time requirement). http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90h19_e.htm
Immigration and Protection of Refugees Act, 2001, c. 27, as am.: 1 year. http://laws.justice.gc.ca/en/I-2.5/index.html
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as am.: 1 year. http://laws.justice.gc.ca/en/i-3.3/70749.html
Indian Act, R.S., 1985, c. I-5: 1 year, http://laws.justice.gc.ca/en/i-5/247900.html
Insurance Act, R.S.O. 1990, c. I.8, as am.: live together in a conjugal relationship (no time requirement). http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90i08_e.htm
Interpretation Act, R.S., 1985, c. I-21, as am.: this act sets out that both the Common Law and the Civil Law (e.g. Statute Law) are equally authoritative and recognized sources of the law of property and civil rights in Canada. This is what lies at the root of couples being able to marry under customary law under the Common Law as long as the Civil / Statute Law does not specifically prohibit it. http://laws.justice.gc.ca/en/I-21/index.html
Old Age Security Act, R.S., 1985, c. O-9, as am.: 1 year. http://laws.justice.gc.ca/en/O-9/index.html
Ontario Disability Support Program Act, 1997, O. Reg. 222/98, as am.: 3 months, or upon declaration by the spouses, or if there is a court order, or domestic contract, or right under the Family Law Act, to provide child or spousal support. http://www.e-laws.gov.on.ca/DBLaws/Regs/English/980222_e.htm
Ontario Works Act, 1997, O. Reg 134/98, as am.: 3 months, or upon declaration by the spouses, or if there is a court order, or domestic contract, or right under the Family Law Act, to provide child or spousal support. http://www.e-laws.gov.on.ca/DBLaws/Regs/English/980134_e.htm
Succession Law Reform Act, R.S.O. 1990, c. S-26, as am… 3 years with respect to dependant’s relief. Not applicable to claims for a share of an estate. http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90s26_e.htm
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A, as am.: 1 year, or are parents together, or have made a cohabitation agreement. http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/97w16_e.htm
Youth Criminal Justice Act, ( 2002, c. 1 ), as am.: a parent includes any person under a legal duty to provide for the young person or any person who has, in law or in fact, the custody or control. http://laws.justice.gc.ca/en/Y-1.5/index.html