Via
Brian Madigan LL.B. (Royal LePage Innovators Realty):
By Brian Madigan LL.B.
True common law marriages are just like every other marriage. However, they are very rare.
Oddly, the expression "to live common law" refers to a marriage of presumption in England. If two people (definitely opposite sex at the time) lived together continuously for a period of 7 years, it was then assumed that they had gone through a legal marriage (and had lost the documents), unless it could be proven that this was not the case. So, a common law spouse was a legal spouse for all purposes; the only difficulty was proving it.
Actual proper proof would be a Court Order, but that could be an expensive remedy. That's going to cost $10,000, so, if they are alive they go to City Hall, and if one, or both are dead then they (the estate) are stuck with the Court Order.
You will appreciate that under the circumstances, there would be a "need" to prove that perhaps grandma and grandpa were married. And, a common law marriage will suffice for the purposes of succession in an estate.
The presumption is that they were truly married, and they just lost their marriage certificate. However, it's a rebuttable presumption. So, if someone else knows the truth, for example another close elderly relative then that person's evidence may rebut the Court's assumption that they must have been married. So too, would be actual evidence from one of the living parties to the marriage. If grandma wants to inherit grandpa's estate because, as she says, they were "married", then she will have to testify to that fact in Court. The Court would be free to draw an adverse assumption from her failure to testify.
You will notice that the rules become somewhat complex, and it's more preferable to have certainty.
Let's move on to the usual category.
The term "common law" usually does not mean a "common law marriage" in the vernacular. It simply refers to a loose arrangement of parties living together.
These parties may be protected under the support provisions of the Family Law Act, but they do not share in property.
Only true spouses have the possessory rights with respect to matrimonial homes and certain other rights that may involve the entitlement to a division of the property upon the breakdown of the marriage.
However, the rights of people simply living together are not to be discounted in their entirety. They may have certain rights that accrue in their favour otherwise at common law. So, to immediately draw the conclusion that they get nothing upon dissolution of the marriage or upon the death of the other party would be incorrect. They simply don't get anything under the Family Law Act. But, not everyone does! Business partners have certain rights, and they are not spelled out in the Family Law Act. They might be entitled to damages by contract, tort, unjust enrichment, or trust law. Obviously, if they have a case, it's going to be more difficult to prove, but it's not impossible.
Quickly to summarize:
· A true common law marriage is a true marriage for all purposes
· Parties living together, have certain support rights under the Family Law Act
· Married spouses (those who have a certificate or Court Order) have possessory rights under the FLA with respect to the matrimonial home
· Other spouses do not
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty