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Is there a legal difference between being married and living together?

Yes. You have more rights and responsibilities when you get married. If you are not married, you don’t get some rights no matter how long you and your partner have lived together. You have to go through a legal marriage ceremony to be married.

Living together in a marriage-like relationship without getting married is often called “living common-law” or “cohabitation”. In Ontario, there’s no formal or legal step you have to take to start a common-law relationshipIn some parts of Canada, you can register a “domestic partnership”. This is not available in Ontario.

People who are engaged to be married have no special legal status. You might have some rights if you are already common-law partners. But you don’t get any more rights just because you plan to marry.

Married couples and common-law couples usually have different rights to:

  • property and debts
  • the family home
  • inheritance

Only married couples can get a divorce.

Married couples and common-law couples usually have the same rights related to their children. This includes their rights to:

  • custody
  • access
  • child support 

Sometimes common-law partners are treated the same as married partners if they have lived with their partner for a certain amount of time, or if they have a child together. For example, they may have the same rights in the following areas:

  • spousal support
  • welfare and disability benefits
  • income taxes
  • immigration sponsorship
  • health care decisions

Married partners and common-law partners can sign an agreement if they want to change some of their rights.   

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1. Learn which rights are different

Married couples and common-law couples usually have different rights in the following areas:

Divorce

If you were married, you must get a divorce before you can marry someone else.  If you don't get divorced, you can still live with someone else in a common-law relationship.  But you can’t remarry.

There might be other reasons for a married partner to get a divorce. For example, you might want to get a divorce so that your married partner won't get certain property after you die. You can read more about why you might want to get a divorce in Do I have to get a divorce?

If you were living common-law, you don’t need a divorce to marry or to live with someone else.

Property

Property includes assets and debts.

When you get married, the law assumes you are in an equal partnership. If you separate or divorce, you and your partner usually share the value of both your property.

Note that this rule might not apply if you and your partner agreed to something else in a marriage contract or cohabitation agreement. Some people call a marriage contract a "prenup" or a "prenuptial agreement".

When a common-law relationship ends, the couple doesn't usually share the value of their property. Usually, each common-law partner keeps:

  • the property they had when they started the relationship
  •  the property they got while they were living with their partner

Common-law partners only have to share the property they own together. They can try to claim a share of their partner's property in some situations, but it can be very hard to prove they should get a share.

Common-law partners may agree to share property in a cohabitation agreement.

Home

If you and your partner separate, there are special rules about who can stay in the home that only apply if you were married.

If you were living common-law, then your right to stay in the home after you separate usually depends on who owns the home or whose name is on the lease or rental agreement.

Inheritance

There are rules about what a married partner gets if their partner dies without a will.

Common-law partners do not automatically inherit anything if their partner dies without a will.

Claiming your rights

To prove your right to things like inheritance or to stay in your home, you might need to prove your relationship.

If you are married, it is easier to prove that you were actually married and the date that you got married. Your marriage certificate should have these details. If you lost or can’t find your marriage certificate, you can usually order it from the government.

If you are in a common-law relationship, it can be harder to prove the time during which you and your partner lived together.

It can also be harder to prove the type of relationship that you had.  You have to show that your relationship was marriage-like and not, for example, a landlord-tenant relationship. A court uses these types of questions to decide if you're in a common-law relationship:

  • Did you live together?
  • Did you have sex?
  • Did you do household chores for each other like cooking, cleaning, and laundry?
  • Did you behave like a couple around other people?
  • Did your friends, family, and community see you as a couple?
  • Did one partner support the other financially?
  • Did you combine your finances,like have a joint bank account or credit card?
  • Did you have any children together or act as parents to each other's children?
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2. Learn which rights are the same

Married couples and common-law couples usually have the same rights related to their children. This includes rights in the following areas:

Many decisions about what should happen to the children after their parents’ relationship ends are based on a legal test called the best interests of the child test. This test applies to children of married and unmarried parents.

Even though rights related to children are mostly the same whether or not you are married, the laws that apply to you depend on your marital status.

For example, if you are married, you may be able to use the federal or the provincial law to apply for custody. But if you are in a common-law relationship, you can only use the provincial law to apply for custody.

Both laws however, say that decisions about custody are always made based on the best interests of the child. 

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3. Learn which rights might be the same

Some rights might be the same whether you are married or in a common-law relationship. It depends on how long the common-law partners lived together or if they had a child together.

Spousal support

If you were married, you can apply to a court for spousal support.

If you were in a common-law relationship, you can also apply to a court for spousal support if you and your partner:

  • cohabited, or lived together as a couple for at least 3 years,or
  • were in a relationship of “some permanence” for any length of time and had a child together.

Even if you were married or in a common-law relationship for many years or had a child together, you don’t automatically have a right to spousal support when you separate from your partner.  You have to show why you should get spousal support.

If you can prove that you should get spousal support, the court decides how much support you should get, and for how long. The amount and how long you get support doesn’t depend on whether you were married or not.

Welfare and disability benefits

If you have a low income or no income, you might be able to get help from one of these social assistance programs:

  • Ontario Works (OW): Some people call this program welfare. This program is run by the local government of the town, city, county, district, or region you live in.
  • The Ontario Disability Support Program (ODSP): Some people call this program disability benefits. This program is for people with serious health problems or disabilities that make them unable to work. It is run by the Ontario government’s Ministry of Community and Social Services.

If you have a spouse, OW or ODSP looks at your combined income and assets to decide if you can get assistance as a couple.

They consider someone to be your “spouse” if:

  • you are married, or
  • you have been living together for at least 3 months, share finances, and you live together as a couple in a relationship that is like marriage.

The amount of income support you get as a couple is less than the total amount you would get as two single people.

Income taxes

If you are married, you have to report information about your spouse when you file your taxes.

If you are in a common-law relationship, you might also have to report information about your partner. You have to report it if, on December 31 of that year:

  • You lived with your partner in a relationship continuously for one year, even if you were apart for up to 90 days,
  • You and your partner are parents of a child, either by birth or adoption, or
  • Your partner has custody of your child and your child depends on them for support.

Sometimes it is helpful to have a married or common-law partner because you can transfer tax credits to your partner, like the disability tax credit or age credit for people over 65.

Other times it is not helpful to have a married or common-law partner because the government looks at both incomes and you might get less tax credits than if you were single.

Immigration sponsorship

You can sponsor your married partner to immigrate to Canada.

You can sponsor your common-law partner if you lived together for at least one year. You could have lived together in Canada or in another country.

If you didn’t live together, you might be able to sponsor your partner if you can show that you were conjugal partners .

Health care

If you don’t have the mental capacity to make a decision about your health, the law says who can make a decision for you. For example, if you are in a car accident and are unconscious, someone else might need to decide what kind of medical treatment you should get.

The person who makes a decision for you is called a “substitute decision-maker” (SDM).

If you still have the mental capacity, you can decide who will be your SDM, if you need one in the future, and put that in writing. This is usually in a separate document called a power of attorney for personal care, and not included in a marriage contract or cohabitation agreement.

If you haven’t made a power of attorney for personal care, the law says your SDM is assumed to be your “spouse” or “partner” unless someone has been appointed by the court or the Consent and Capacity Board.

For health care decisions, a person is your “spouse” if any of the following things is true:

  • you are married to them
  • you have lived together common-law for at least one year
  • you have a written cohabitation agreement with them
  • you have a child together

A person stops being your “spouse” if you have separated from them because your relationship has ended.

A person is your “partner” if you have lived together for at least one year and you have a close personal relationship of primary importance to both of you.

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4. Change your rights

You and your partner can change the rights you get when you marry or live together. There are different ways to do this.

Contract

If you want to change some of your rights, you can sign a cohabitation agreement or marriage contract.  These agreements are sometimes called domestic contracts. You can make a domestic contract before or after you get married or start to live together.

Your contract can cover things like:

  • property rights if you separate
  • spousal support if you separate
  • health care decisions if you don’t have the mental ability to make them

You cannot make a contract that:

  • says who gets custody and access rights to your children in the future if your relationship ends
  • says when you have to report a common-law partner on your income tax returns or to Ontario Works or the Ontario Disability Support Program
  • changes immigration rules about who you can sponsor

You can read more about these agreements in these Common Questions:

Will

You can also make a will. A will is a written legal document that says what happens to your property after you die.

The date of your will can be very important. For example, your whole will may not be valid if it was made before you and your partner got married.

You can read more about how a will can change certain rights in these Common Questions:

Power of Attorney

For your health care decisions, you can make a power of attorney for personal care. This is a written legal document that gives someone else the power to make personal care decisions for you if you don’t have the mental ability to make them yourself. 

You can name someone who is not your partner or spouse. For example, you can name your adult child or your sibling if you want them to make personal care decisions for you.

Personal care decisions are decisions about your health care and medical treatment, diet, housing, clothing, hygiene, and safety.

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Reviewed: 
July, 2016

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