Does it matter if “I do?” What if “I don’t?”
By Marian Gage
The Angus Reid Institute recently published a poll indicating more than half of the respondents feel that being married is not important to them. Younger Canadians are waiting longer to get married, or they are not getting married at all.
The same poll indicates that most Canadians feel that married spouses and spouses who are cohabiting but not married should be treated equally in law.
The reality is that the law distinguishes between married and non-married spouses who are living together in several ways. On some issues there is no distinction at all. Here’s the brief breakdown…
Married or Not Married? – Parenting and Child Support
It makes no difference whether a child’s parents are married, unmarried and cohabiting, or practical strangers who never shared a home. The law around parenting is child- focused and based on a child’s best interests.
Similarly, child support is considered the child’s right and has nothing to do with the parents’ marital status or living arrangements.
Married people are considered “spouses” who may be entitled to receive – or have an obligation to pay – spousal support once they are married.
Cohabiting spouses who are not married are considered “spouses” who may be liable to pay or entitled to receive spousal support after they have been living together for three years, or for a shorter period of time “in a relationship of some permanence” if they have children together.
In short, in longer relationships there is no difference between married and unmarried (but cohabiting) spouses when it comes to spousal support.
The law in Ontario provides a regime for sharing the value of property that has accumulated from the date of marriage to the date of separation. If one spouse has accumulated greater wealth in his or her name during the marriage, then that spouse is required to share that gain with the other spouse.
This regime only applies to spouses who are legally married. While there are some other rights and remedies available to unmarried spouses they do not share the same entitlement in the legislation.
A matrimonial home, by definition, is a home (and/or cottage/houseboat/vacation property, etc.) that married spouses are occupying in the ordinary course at the time the marriage ends. The matrimonial home is treated differently than other property and married spouses benefit from certain rights with respect to a matrimonial home even if that home is in only one spouse’s name (and even if that spouse owned the home prior to the marriage, even if that spouse inherited the home, etc.).
No matter how long two people are cohabiting, no matter how many children they have together, no matter how much a spouse contributed to the equity/value of a home, the rules about matrimonial homes do not apply to unmarried spouses.
As self-serving as this will be given that a lawyer wrote it, I would strongly urge spouses who are thinking about cohabiting (even if there are no plans to marry) to get legal advice about what this means legally to avoid unpleasant surprises in the future.
Marian Gage is a Collaborative Family Lawyer, an Accredited Family Mediator (OAFM), a Certified Specialist in Family Law (LSO) and a partner at Berry Gage LLP