Common-law marriage

In many jurisdictions, common-law marriage is a legal provision whereby two people who are eligible to marry, but who do not obtain a legal marriage, are nevertheless considered married under certain conditions. Typically, they are deemed married after living together openly as a married couple under specified conditions for a specified period of time. In other jurisdictions, the couple are required to have actually stated their mutual intent to be presently married. Depending on the jurisdiction, a common-law marriage may provide special benefits, such as filiation and adoption, inheritance, and division of property.

Table of contents

1 Canada 2 England and Wales 3 United States

Canada

Canadian federal law does not have "common law marriage", but various federal laws include "common law status," which automatically takes effect once two people have lived together for two years and thus partners may be eligible for various government benefits of married spouses based upon their relationship with the individual who is eligible for some type of family based benefit. As family law varies between provinces, there are differences between the provinces regarding the recognition of common law marriage.

In Ontario, a common law province, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having "cohabitated in a relationship of some permanence." However, the part that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common law spouses from married partners is that a common law partner can be compelled to testify against his or her partner in a court of law.

In 1999, after M. vs. H., the Supreme Court of Canada decided that same-sex partners would also be included in common law relationships.

Quebec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a kind of marriage. [1] However, many laws in Quebec explicitly apply to common-law partners (called "de facto unions" or unions de fait) as they do to spouses. List of these laws As in the other provinces, same-sex partners may become common-law spouses in Quebec. [1]

A recent amendment to the Civil Code of Quebec recognizes a type of domestic partnership called civil union that is similar to common-law marriage and is likewise available to same-sex partners.

England and Wales

The term "common law marriage" is frequently used in England and Wales, however such a "marriage" is not recognised in law, and it does not confer any rights or obligations on the parties. See also English Law. Genuine (that is, legal) common-law marriage was abolished under the Marriage Act 1753.

United States

Eleven U.S. jurisdictions currently recognize common-law marriages. Where the doctrine is recognized, generally if a couple lives together and are reputedly married, a rebuttable presumption arises that they are husband and wife. In some states, a common-law marriage may also be proven by evidence of words in the present tense (verba in praesenti) stating a mutual, present intention to be married (see, e.g., Commonwealth v. McClean, 564 A.2d 216 (Pa. Superior Ct. 1989)).