The Myth of the Common Law Marriage

Grapes & Gourmet Gala Event
January 22, 2013
New Ways for Families Program helps Divorcing Parents in Medicine Hat Resolve Their Parenting Disagreements
April 1, 2013
Show all

The Myth of the Common Law Marriage

As a family lawyer, I have sometimes had to explain to my very surprised client that she is not, indeed, married to the person that she has believed was her husband, sometimes for a number of years.  This client understands very well that she has not been through either a church wedding or a civil marriage service.  However, she believes that, since she has lived with her spouse for more than three years, she has a common law marriage.  This is, in fact, not the case.  Under the law, if you have never been through a marriage ceremony of some kind, you are not married, and you and your children do not have the same rights and responsibilities that you would have if you were married.

The rights and responsibilities of married couples about parenting, child support and spousal support are set out in either the Divorce Act, or the Family Law Act.  These pieces of legislation indicate that both parents will participate in parenting in a way that is in the best interests of the child(ren).  They also indicate that both parents are responsible for financially supporting their children.  The Family Law Act caps this responsibility at the age of 22, as long as the child does not have a mental or physical disability. The Divorce Act, however, continues that responsibility until the child is no longer dependent.  Finally, both the Divorce Act and the Family Law Act state the factors for determining whether one spouse or the other is entitled to spousal support, and if so how much they would receive and for how long.  In practice in Medicine Hat, Alberta, most married families choose to have the Divorce Act regulate these rights and responsibilities.

For unmarried couples, these rights and responsibilities are determined by the Family Law Act, as long as the unmarried couple has been living together for more than three years, have a child together, or have entered into an Adult Interdependent Partnership Agreement.  The Family Law Act states that unmarried parents will participate in parenting in a way that is in the best interests of the child(ren).  However, the children of unmarried couples are entitled to support only until they reach the age of 22, regardless of whether they are still attending post-secondary education or whether they remain dependent. (If the children remain dependent because of a physical or mental disability, their entitlement to support will continue.)  If an unmarried couple have not lived together for at least three years, have no children, and have not entered into an Agreement, neither person is entitled to spousal support from the other.

The rights and responsibilities of married couples to divide their matrimonial property are governed by the Matrimonial Property Act.  This Act sets out that married people have the right to divide most of the property they acquired during the marriage equally between them, regardless of whose name the property is in.  It also sets out what property does not have to be shared between spouses and what property is shared, but not equally.

The rights and responsibilities of unmarried couples to divide their property are not governed by any specialized legislation.  Instead, it is governed by the Law of Property Act (which states how to divide property between any two people who own property together) and by general principals of fairness that the Courts have decided in previous cases.  If you are unmarried, there is no legislation which ensures that you will share equally in the property acquired during the course of the relationship in the name of your partner, unless you have signed an Agreement that says you will.  In addition, the Court may decide that you will not share at all in property that your partner brought into your relationship or received as a gift or inheritance from a third party.

In a recent case out of Quebec, the Supreme Court has reinforced what they have previously said about unmarried couples.  If unmarried couples wanted to be treated the same as married couples, they would get married.  As a result, the only way to ensure that you have the same rights and responsibilities as a married couple is to go through a church wedding or a civil marriage ceremony. If you do not, no length of time living together will give you those rights and responsibilities.

Catherine Regier
Catherine Regier helps you navigate the turning points of life. She is a partner with Pritchard & Co. Law Firm, LLP. Contact Catherine at (403) 527-4411 or at