fbpx

Right Differences in Common Law vs Marriage in Canada

It’s a common misconception that the same rules that apply to married spouses also apply to common-law partners. However, in Quebec, the legal reality surrounding the rights of unmarried couples differs significantly from that of married or civil union couples. Among the major distinctions between common-law and married spouses, aspects such as family patrimony, alimony and inheritance rights stand out.

It is important to note that in this text, the term “married spouses” also includes people in a civil union.

The right to share family assets

According to article 414 of the Civil Code of Québec (hereinafter C.C.Q.)[1] ” [l]arriage creates a family patrimony made up of certain assets of the spouses, regardless of which of them has ownership rights to these assets. “Upon separation, the property listed in article 415 C.C.Q. is divided equitably between the spouses. On the other hand, there is no automatic family patrimony regime for de facto spouses. Assets acquired during cohabitation are not subject to the same rules as for married couples.

The right to spousal support

For married spouses, in the event of divorce, the law generally provides for the right to alimony when the needs of either spouse justify it. Alimony can be paid for a fixed or indefinite period, depending on various factors such as the length of the marriage, respective financial contributions, and post-separation financial needs.

On the other hand, for common-law spouses, there is no obligation to pay alimony to the other spouse in the event of separation.

It is important to note, however, that the obligation to provide child support remains, regardless of whether the spouses are married or in a de facto union.

Unjustified enrichment

Notwithstanding the foregoing, common-law spouses may be governed by the principle of unjust enrichment. This is a mechanism that enables one person to obtain financial compensation for his or her contribution to the enrichment of the other spouse’s assets. If one party is impoverished while the other is enriched, and if there is a correlation between the two phenomena without any apparent justification, the impoverished party can invoke the concept of unjust enrichment to claim financial compensation.

The right to inheritance

In Quebec, the question of inheritance differs between married and common-law spouses. Inheritance rights are governed by the Civil Code of Québec, and the distinctions between these two relational statuses are important.

For married spouses, inheritance law is more automatic and predictable. According to article 653 C.C.Q. “Unless otherwise provided by will, the succession devolves to the surviving spouse who was related to the deceased by marriage or civil union, and to the parents of the deceased, in the order and according to the rules of this title. Thus, the surviving spouse is generally protected by law.

For common-law spouses, on the other hand, inheritance law is less automatic. In the absence of a will clearly specifying the deceased’s wishes, the de facto spouse is not automatically entitled to a share of the estate.

Conclusion:

In summary, the rights of de facto spouses and married spouses in Quebec are quite distinct. Contrary to popular belief, the rules applicable to married spouses do not automatically extend to common-law partners. Three major aspects differentiate these two categories of couples: the right to share family assets, the right to spousal support and the right to inheritance. However, it is crucial to emphasize that the three rights discussed are only a fraction of the differences between common-law and married spouses. Many other rights and obligations differ between these two statuses. A comprehensive assessment of these differences is essential to ensure adequate legal protection.


[1] Civil Code of Québec, RLRQ, c. CCQ-1991, (hereinafter “C.c.Q.”).