MARRIED OR COMMON-LAW - THERE IS A DIFFERENCE
(March 2003)
by Ian Morley
The Supreme Court of Canada recently
issued
another ruling on the issue of common-law
relationships. In Nova Scotia v. Walsh,
the
Supreme Court of Canada was asked to
consider
whether provisions in the Nova Scotia
Matrimonial
Property Act, which make a distinction
between
formal marriages and common-law relationships,
should be ruled unconstitutional because
they contravene the right to equality
under
the Charter of Rights.
We have very similar legislation in
B.C.,
which makes distinctions between married
partners and common-law partners when
it
comes to division of assets. For example:
- Only married spouses are entitled to the
presumption of an equal division of family
assets on the breakdown of the marriage.
- Common law partners can only claim an interest
in the other spouse's property by claiming
a constructive trust, in which the partner's
entitlement is based on his or her contribution
to the property.
- A common law partner must apply for spousal
support within one year after the end of
the relationship. This deadline does not
apply to married spouses.
The Supreme Court of Canada ruled that the
provisions in the Nova Scotia family law
legislation were valid. The court said that
the decision to marry is a personal choice
that, if undertaken, includes an agreement
to undertake the obligations that the family
law legislation imposes on married couples.
The court noted that many couples have chosen
to avoid marriage and the legal consequences
that flow from it, and that to ignore the
differences between the obligations that
married couples have agreed to undertake
and that common-law couples have not agreed
to undertake is to make presumptions that
simply do not exist.
This case confirms that common-law
relationships
are not the same as being married.
There
are many differences between the two.
In
British Columbia, provincial legislation
contains many different definitions
as to
when common-law spouses may gain some
of
the rights and obligations of married
spouses.
If you have questions about your own
situation,
please call us.
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