Being the spouse of another person has important legal implications in Ontario.  In a family law context, it affects property rights and the right to support.  Two people are spouses of one another if they are legally married, or if they live together in a common law relationship.  This article will focus on the effect on property rights.

Some people believe that if a couple live together long enough, it doesn’t matter whether or not they are legally married.  This is wrong.  Married spouses are treated very differently than common law spouses in relation to property rights.  This confusion about the law can result in surprising results – whether the relationship ends because the parties’ separate or because one of the spouses passes away.

Common law spouses do not generally have automatic property rights or claims when the relationship ends, either because of a breakdown of the relationship or the death of their partner.  They may receive lifelong survivor benefits to a private or government pension, but they do not have a statutory claim against the property of the other spouse or to an equalization of property.  Common law spouses can only make claims against the property of the other spouse if they can prove an unjust enrichment claim or that there was a joint family venture.  Common law spouses are not automatically entitled to be beneficiaries of registered investments, like a TFSA or an RRSP.  This can lead to odd results, like their children being the sole beneficiaries of these investments.

Married couples, on the other hand, have all the same property claims as common law spouses but are also entitled to an equalization of net family property.  Essentially, this means they are entitled to share in the increase in net worth that accrued to both parties during the marriage.

This gets further complicated for spouses who live together in a common law relationship for many years and are also married for a period of time.

Ontario is now a very diverse society with many varied types of family and spousal relationships.  Our legislation is inclusive in an effort to be responsive to this diversity.  Whether you are thinking about estate planning, getting married, signing a cohabitation or marriage agreement, or determining your rights at the end of a relationship, you should get legal advice to understand the legal implications of being a spouse in Ontario.

Written by David Harris-Lowe