There are certain things that you and your partner should consider when making plans to share your lives. A long-term romantic relationship doesn’t only involve everyday chores like cooking and paying the bills. There are also other important things to discuss when planning for the future, such as whether both of you’re going to get married officially or remain in a common-law marriage.
Many people get confused when it comes to these terms and have a hard time differentiating the two. Although the two legal concepts seem the same, there are distinct differences between them and if you and your partner have decided to split, your relationship status will affect both parties’ legal rights, and sometimes this might not even be the case. Everything depends on your unique circumstances.
For this reason, in this article, we’ll take a closer look at the main differences between marriage and common-law marriage.
If you wish to get an overview of common law vs marriage, you must start with the basics. Nowadays, many opt for a common-law relationship which is the act of living together in a marriage-like relationship and this type of union is equivalent to a couple being legally married although the couple in question never exchanged vows in a civil or religious ceremony and don’t have a marriage license. No special legal process is required to create a common-law union but certain conditions must be met for a couple to be considered married by common law.
Common-law couples, for the most part, enjoy the same benefits as a married couple but still, there are certain downsides. If one spouse purchases property on their own and doesn’t put their partner on the deed, it can be sold in the future with the other person’s consent. Hiring an attorney who understands common law marriage is recommended to review respective rights and obligations and avoid such unpleasant situations.
Being married means that a couple has been wed by an officiant and has concluded a legally recognized marriage. An officiant can be a judge, a judicial officer, a religious leader, and even justice of the peace and can be performed either in a religious setting, non-denominational or secular setting, like a courthouse or city hall. Once the ceremony is over, the couple receives a marriage license.
Although common-law couples enjoy similar treatment as married couples, for certain purposes, they are treated differently than married spouses. Below we outline the most significant differences.
When a married couple decides to dissolve the marriage, they can automatically apply for spousal support, regardless of the length of the marriage unless there is a marriage contract that provides otherwise.
Common-law couples only have obligations to each other after they’ve lived together for at least three years or not lived together for 3 years but share a child, meaning that an unmarried couple is unable to apply for spousal support unless the relationship has passed the required threshold.
After a married couple separates, they can apply to equalize their net family properties under the Family Law Act. Generally, the net value of all property acquired during the marriage shall be divided equally although there are exceptions if they have entered into a cohabitation agreement or marriage contract. Common-law spouses are, on the other hand, not entitled to an equalization payment.
Married spouses aren’t allowed credit for the equity they bring into the marriage for a home purchased before the marriage if it’s a “matrimonial home” when separating unless a marriage contract provides otherwise. Both spouses have the right to live in the matrimonial home after separating, regardless of who is the legal owner and neither one of them can sell the home without the other one’s consent or court order. Common-law couples don’t have these rights.
Wills and Estates
Only married spouses have a right to share in the estate if the spouse dies without a testament. The surviving spouse is entitled to the entire estate, or if they have children, the surviving spouse is entitled to the first $200,000 of the estate, and a half to one-third of the remainder of the estate depending on how the number of children they share.
Common-law spouses do not enjoy intestate succession rights and cannot apply for equalization of the net family property after the death of their spouse. A valid testament strictly governs their rights to share in the estate.
It’s always a great idea to discuss your expectations about finances, and other personal decisions with your future spouse. It’s wise to have a look at what different unions entail and be sincere with each other and decide whether traditional marriage or common-law marriage suits you more.