Rights of Married versus Unmarried Spouses

February 20, 2019 | Joanna Harris

Common law relationships are increasingly common in Canada; however, many people do not realize the differing obligations and legal rights of married versus unmarried spouses upon separation.

For example, in Ontario, Alberta and New Brunswick, unmarried spouses have no automatic right to share in their partner’s property unless they hold title to property together. This article will examine some of the different rights and obligations of married versus unmarried spouses.

Under Canada’s Constitution, the federal, provincial and territorial governments share responsibility for family law. Divorce is an area of the law governed exclusively by the federal government, whereas property law is governed by each of the provinces. There are some areas of the law where the federal government and the provincial government both have jurisdiction to govern, such as child and spousal support.

Since each province has its own law to govern the breakdown of intimate relationships, some provinces have decided to expand property rights to unmarried spouses, but the majority do not.

Divorce Act

Unmarried spouses have, of course, no recourse to the federal Divorce Act, which is available in cases involving only married spouses and takes priority over any of the same claims under the Family Law Act.

Ontario Family Law Act

Ontario’s Family Law Act does not actually recognize the common vernacular term “common law relationship” and instead defines spouses as married or unmarried. Uniquely, in Ontario the Family Law Act contains two definitions of “spouse”.

Married Spouses in Ontario Family Law

According to section 1(1) of the Family Law Act, a “spouse” means a person who is married or entered a marriage, and Part I of the Family Law Act entitles only such spouses, upon marriage breakdown, to an equalization of net family property.

In general, the value of any property acquired during the marriage (and still existing at separation) must be divided equally between these spouses, and any increase in the value of property owned by such a spouse at marriage must be shared.  For more detail, please visit the Ontario Ministry of the Attorney General, here.

Under the Family Law Act, married “spouses” are also entitled to certain rights in respect of the matrimonial home and to spousal support and child support.

Unmarried Spouses in Ontario Family Law

An expanded definition of “spouse” is found in section 29 of the Family Law Act, which applies only with respect to the support obligations, and is defined as:

  • a married couple, or
  • two persons who are not married but:
    1. have cohabitated for a period of not less than three years; or
    2. have a relationship of some permanence, if they are the parents of a child.

Unmarried Spouses have No Rights to the Automatic Property Sharing Provisions

Significantly, unmarried “spouses” have no rights to an equalization of net family property or any rights associated with the matrimonial home, unless the rights are granted elsewhere, such as by way of being a registered owner of the property.

 

The different treatment of different couples can be extreme.

By way of example, if you lived with someone for 30 years and never married then you would not be entitled to an automatic interest in any of their property; you would only be entitled to seek spousal support and, if applicable, child support.

However, if you are married you are immediately entitled to an automatic interest your spouse’s net family property, in addition to an entitlement to seek spousal support and, if applicable, child support. Under the Family Law Act, property is the value of all of a person’s assets, including any homes, cars, bank accounts, pensions, business values, etc. subject to important deductions and exclusions.

While unmarried spouses are not entitled to seek an equalization of net family property under the Family Law Act, unmarried spouses may still have claims to their spouse’s property, outside of the Family Law Act, if their name is on title to the property, in the case of a joint account, or a home. Unmarried spouses also may have claims, again, outside of the Family Law Act, based on other statutes, in trust or in equity.

Disclaimer

The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.