Area of Law: Family Law
Answer # 0127
Entering into a common-law relationship before divorce is finalRegion: Ontario Answer # 0127
Is a common-law relationship recognized by law if one partner is still legally married to someone else?
Provincial family and marriage laws and the Federal Criminal Code address the issue of what a legal marriage is. How common-law relationships are recognized and treated in law fall under provincial legislation and are different in each province.
Polygamy means being married to more than one person at a time, and is illegal in Canada. Section 293 of the Criminal Code states:
“every one who
(a) practices or enters into or in any manner agrees or consents to practice or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
(b) celebrated, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”
Family Law Act
Under the Ontario Family Law Act, spouse means either of two persons who:
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
And under the Act, “polygamous marriages” are defined as:
“In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.”
The effect of these definitions is to give rights to a person who, in good faith, entered into a marriage that later turns out to be void, voidable, or polygamous.
A marriage does not end legally until you are divorced. Practically speaking, however, it often happens that before a couple is legally divorced, one or both of them could be living with another partner in a conjugal relationship. Also, two people who are separated from their original legal spouses, and who live together for more than 3 years, or have a child together, are usually considered to be “common law spouses under family law. In those circumstances, therefore it appears that a person can have two spouses.
Consequently, it becomes complicated to discern whether a common-law union is legal when one of the common-law spouses is still legally married to someone else; and if so:
- how does it affect their rights and obligations under each relationship, and
- does that mean that they have committed polygamy?
Family law issues
Child and spousal support from a legal marriage
Under the Ontario Family Law Act, you are always responsible for contributing to the support of your own children, whether you live with them or not. If you have entered into a common-law relationship but are not legally divorced from someone else, you are still responsible for any child and spousal support obligations you may have to your legal spouse.
As well, courts will usually not reduce your support obligations (child and spousal support) to your first family because of responsibilities and obligations you have undertaken after separation.
At the same time, if your spouse has entered into a common-law relationship and you are not divorced, your spouse’s conduct is not relevant in the determination of the amount of spousal support or the division of property.
Child support from a common-law relationship
What if my common-law relationship ends, but my common-law spouse is still legally married to someone else?
If there are children together in the common-law relationship, child support must be paid by the parent, regardless of whether one of the common-law spouses is considered to still be legally married to someone else. Similarly, the common-law spouse’s ex–spouse from the legal marriage must still pay child support for children from that previous marriage.
Common-law partner’s children from a previous legal marriage
If my common-law relationship ends, do I have to pay child support for my common-law partner’s children from a previous legal marriage?
Under the Federal Divorce Act (which applies only to married spouses) and most provincial family law legislation (which applies to both common-law and to married couples), a person can be obligated to pay child support for a child that they have demonstrated an intention to treat as their own, or for whom they are in loco parentis, which means to stand in the place of a parent.
If your common-law partner has children from a former relationship who have been living with you, you may be considered to be a parent to that child for the purposes of child support. Anyone who acts as a parent to a child may be required to pay child support. In other words, you may have to pay support for children that are not yours biologically, and who have not been adopted by you.
Whether you will be responsible for child support depends on the individual circumstances of your situation, such as whether you were involved in typical parental duties, were part of the child’s daily life, took on childcare responsibilities, paid for the child’s care, and generally held yourself out, and were considered by others as a parent to the child.
What happens to the matrimonial home?
If someone is legally married and has a matrimonial home with their spouse, having a new common-law spouse does not change the fact that the property is a matrimonial home. If a person who is legally married still lives in the original “matrimonial home” with a new common-law partner, the legal rights of the other married spouse (who may be living elsewhere) remain the same, regardless of the fact that the common-law partner has moved in. Only a divorce, or a settlement in a legal separation agreement can change the spouse’s right to live in, or have a share in the matrimonial home.
What happens if a common-law spouse dies before getting a divorce?
If a common-law spouse dies before they have received a divorce from a previous spouse, there can be issues regarding beneficiaries and inheritances.
Problems may arise if the beneficiary is simply listed as ‘spouse’ on someone’s assets, such as RRSPs, and insurance policies. In such cases, the ex-spouse from the legal marriage is still a spouse if there is no divorce, and prima facie (on first impression) would be entitled to the assets, not the common-law partner. To avoid such problems, you can change the beneficiary designations, and/or get a divorce.
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