Pros and Cons of Marriage vs. Common-Law:  Which is Best for You? 

So you’ve found yourself a lifelong partner – someone who you think is “The One”.  It looks like happily-ever-after is well within reach for you. 

Now what?  Do you get married?  Or do you choose to live together in a common-law relationship?  It’s an important decision.

That’s because in Ontario, each of these options comes with distinct legal rights and responsibilities. Understanding the distinctions is important, since they can significantly impact your financial security and property rights, in the event you later separate or one of you dies. 

This blog explores some of the key pros and cons of marriage versus common-law unions, focusing on the legal framework in Ontario.

Related: Marriage vs. Common-Law in Ontario: Understanding the Differences

Pros and Cons of Marriage

Both marriage and common-law partnerships come with distinct legal rights and responsibilities, which can have a significant impact on individuals’ financial security and property rights in the event of separation or death. In this section, we will explore the key pros and cons of marriage, focusing on the legal framework in Ontario. By understanding the advantages and disadvantages of marriage, you can make informed decisions about the type of legal union that best suits your  needs and circumstances.

Pros of Marriage

1. Legal protection is comprehensive. If you’re a married person in Ontario, you get a wide range of legal protections that are set by statute. For example, if you end up divorcing, the federal Divorce Act will govern your spousal support rights and other entitlements.
2. Property division is ascertained.  As a married couple, you and your spouse are subject to a dedicated regime under the Family Law Act, to deal with your property upon separation or death. This sees you equally sharing the value of the property you have acquired during your marriage.
3. Matrimonial home has special status. Once married, your matrimonial home – regardless of which of you technically owns it – is treated as a special asset.  It cannot be excluded from equal division unless you and your spouse otherwise agree (i.e. by way of a valid marriage contract). 
4. Spousal support is fairly certain. Marriage typically provides you both with greater certainty in terms of spousal support rights/obligations. Under the Spousal Support Advisory Guidelines, that amount of support you pay or receive is more consistent and predictable, as compared to common-law partners.
5. Estate rights accrue. If one of you dies, the other has automatic inheritance rights under Ontario’s Succession Law Reform Act, even if there is no Will. 

 

Related: How to Ensure a Successful Marriage

Cons of Marriage

1. Separating is more complicated. Divorce requires a legal process that can be time-consuming and costly. You and your spouse must formally separate, then file for divorce and wait for the court’s approval. This often prolongs the entire process. 
2. Property division is mandatory. The automatic division of property and special treatment of the matrimonial home might work as a disadvantage for you, especially if you have significant assets. It may even breed conflict, if one of you thinks you deserve more than equal division because you contributed more to the marriage. 
3. Spousal support may be onerous. If you are the higher-earning partner, then the spousal support obligation to your spouse may feel like a financial burden, no matter how legally fair. 

Pros and Cons of a Common-Law Relationship 

Common-law relationships offer flexibility in property ownership and a simpler separation process without formal divorce proceedings. However, they may also result in less legal protection and support entitlements compared to marriage. In this section, we will explore the advantages and disadvantages of common-law relationships in Ontario.

 

Related: What is Considered Common-Law in Ontario?

 

Pros of Common-Law Relationships

In Ontario, a common-law relationship – defined as living together in a conjugal relationship for not less than three years, or having a child together – gives rise to certain property/support rights and entitlements. However these will not be as comprehensive as if you are married.  Here are some of the pluses:

1. Flexible property ownership. As common-law partners, you do not have automatic property rights. Each of you retains ownership of any property you brought into the relationship, unless you can prove you have a joint family venture or have made a financial contribution to the other person’s property. 
2. Avoid complex divorce procedures. You can separate without going through the formal legal process of divorce. This can save you time, money, and emotional stress, especially in situations where you don’t share much property or where your financed are only minimally intertwined.
3. Your liability for spousal support is reduced. As common-law partners, you may still have spousal support obligations to each other. However this arises less often than it does for married partners. The guidelines for common-law spousal support are more lenient, and this is a big benefit especially if you are the higher-earning partner.

Cons of Common-Law Relationships

 

1. Your property is not automatically divided. Since there is no legislated property division process, you can be at a disadvantage if you happen to be the lower-earning partner in your union. The end of your relationship may leave you without any legal claims for your accumulated assets, unless you can prove that you contributed to their acquisition.
2. Estate-related rights are limited. You do not automatically inherit from each other, unless your Wills specifically say so. This means that if one of you dies, the other could be left without financial protection, unless you have provided for this possibility.
3. Spousal support is uncertain. Although you can certainly claim spousal support after your common-law relationship ends, it is not guaranteed. Courts will consider various factors, such as the length of your cohabitation, the financial dependence of one partner, and whether you had children together.

 

The Takeaway

When choosing between marriage and a common-law relationship in Ontario, consider the legal rights and responsibilities of each. Marriage offers comprehensive legal protection and property division, while common-law relationships provide flexibility in property ownership and a simpler separation process, but may offer less legal protection and support entitlements.

Both marriage and common-law unions in Ontario come with unique legal rights and responsibilities. Be sure to know what they are, and if you need further assistance, don’t hesitate to give our offices a call.