The short answer: yes, you can have a common-law spouse and be legally married in Canada. However, the definition of common-law changes depending on who is looking at the relationship.
Who Would Care if You are Married and Have a Common-Law Spouse?
The definition of a common-law relationship varies across provinces and depends on its purpose, whether it’s for immigration, tax, or family law considerations. Here’s a breakdown:
1. Can You Have a Common-Law Spouse While Legally Married in Canada for Immigration Purposes?
Yes, you can, but you can’t be cohabiting (in a relationship) with both. For immigration purposes, common-law relationships are defined as a couple who have lived together for at least one year in a conjugal relationship. When determining if you have a common-law spouse in these circumstances, immigration officials will also focus on evidence that you are separated from your legal spouse and no longer cohabiting.
2. Can You Have a Common-Law Spouse While Legally Married in Canada for Tax Purposes?
Yes, you can have a common-law spouse if still legally married in Canada, but your marital status must be declared accurately to the CRA.
For tax purposes, the Canada Revenue Agency considers a couple to be in a common-law relationship if they are living together in a conjugal relationship with someone other than their legally married spouse and meet one of the following conditions:
- They have lived together for at least 12 months,
- They have a child together by birth or adoption, or
- One partner has custody and control of the other partner’s child, and the child is wholly dependent on them for support.
3. Family Law and Common-Law Spouses While Legally Married in Canada
As in other legal contexts, it is possible for someone to still be legally married and in a common-law relationship with another person under family law legislation.
Cohabitation agreements
Moving in together is a big step. Take it on solid ground.
A cohabitation agreement protects you both, whatever comes next.
When it comes to family law, definitions and rights for common-law spouses vary between provinces:
- Ontario: Under Ontario law, common-law spouses are defined as two people who are not married to each other but have cohabited:
- Continuously for at least three years, or
- In a relationship of some permanence and have a child together (by birth or adoption).
- Alberta: Alberta Law uses a similar definition but adds an option for couples who enter into an “adult interdependent partner agreement”.
Why Does it Matter if You Have a Common-Law Spouse When Still Legally Married?
For whatever reason, there are many couples who do not get divorced after they separate. Therefore, it is entirely possible for a person to be married and be in a common-law relationship with another person.
1. Immigration Purposes
In sponsorship cases, immigration officials require evidence that a person sponsoring a common-law partner is separated from their legal spouse and no longer cohabiting with them. Failure to provide sufficient proof could jeopardize the application.
2. Tax Purposes
Your marital status must be accurately declared to the CRA. Being legally married does not exempt you from declaring a common-law relationship if you meet the criteria. Undisclosed common-law relationships can lead to accusations of tax fraud, penalties, and legal repercussions.
3. Family Law Purposes
Being legally married while in a common-law relationship can create complex support obligations. For instance, you could be legally required to pay spousal support to both your legal spouse and your common-law partner, depending on the circumstances and Ontario’s family law rules.
Double – Dipping in Legally Defined Relationships
Canada’s legal landscape is complex when it comes to common-law relationships, especially if one party is still legally married. Definitions and obligations vary by context, whether for immigration, tax, or family law purposes. While being legally married doesn’t necessarily prevent you from being recognized as common-law, it does bring unique challenges and responsibilities that must be navigated carefully.
When in doubt, consult a legal professional to ensure you’re fully informed about your rights and obligations in these overlapping relationships.
Can you get married if you’re not divorced from a previous relationship?
In order to be married in Canada, you must be legally divorced from any previous relationships. That’s why Foreign Divorce Letters are needed from an Ontario lawyer.
Do you need to get divorced?
If you want to separate from your spouse, you are not legally required to get a divorce. However, staying married can entitle your former partner to claims and benefits as a spouse.
Do you need a separation agreement if still legally married?
You aren’t legally required to have a separation agreement if you’re still married, but it can protect both parties.
