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Are You Legally Married?

By Wills & Estates Team (posts) and Heather Lloyd (posts)

The New Million Dollar Question

It’s a question we’re often asked when meeting new people. It’s a question that maybe used to be easy to answer – but, with the increasing frequency of “common-law” and other non-traditional relationships, that is no longer the case.

If you are legally married, the answer is an easy “yes”

(that is, unless you’ve separated). But, for the unmarried, then as a starting point, for the purposes of estate and family law, people are considered to be “spouses” if they have “lived together in a marriage-like relationship” for at least two years.

Why does it matter?

Unmarried spouses have essentially the same rights as do those who have gone through a formal legal marriage ceremony. This means:

  1. If one spouse dies without a Will, the other spouse is entitled to either a large share of the estate (if the deceased spouse had children) or even the entire estate (if the deceased spouse had no children);
  2. If the deceased spouse did have a Will, the surviving spouse has, because of the spousal relationship, the right to seek that the Will be “varied” in his or her favour (the right to contest the Will); and,
  3. The surviving spouse may be automatically entitled to certain benefits from the deceased spouse’s pension, depending on the terms of the pension.

How do I know whether I’m a spouse?

This is the (in some cases literally) million-dollar question – what does it mean to “live together in a marriage-like relationship”?

To determine this, the Courts will look to a number of factors, including:

  • Did they live under the same roof all the time, most of the time, some of the time?
  • Did they vacation together? Did they do other activities together?
  • Did they have a sexual relationship?
  • Did they present themselves to others as spouses? Did others see them as spouses?
  • Did they own property or other assets (like bank accounts) jointly?

While sometimes the may seem clear, be prepared for some surprising outcomes. For instance, in one case two individuals who kept separate residences (but often overnighted together at each other’s residence, as well as took holidays together and so on) were found to be in a marriage-like relationship.

The rule of thumb is – if there is real doubt, you should assume that the relationship would be found to be marriage-like, and then plan accordingly.

How does it end?

Given the uncertainty surrounding whether a certain relationship is “marriage-like”, the next question that inevitably arises is – how can we be sure that such an uncertain relationship status has, in fact, ended?

The answer given by the Courts is, it ends when one of the parties forms a “settled intention” to end the relationship. The adjective “settled” suggests an intention that arises as a result of thought and deliberation, so an impulsive breakup may not meet this standard.

Ideally, if one person does form a “settled intention” to end the relationship, that should be communicated or recorded in writing in some way (for instance, by the person taking steps to obtain a separation agreement).

Entering into a marriage-like relationship is a game-changer for a person’s legal circumstances. Before any relationship hits the two-year mark, the people involved should obtain legal advice with a view to a) update their estate planning, and b) determine whether they might benefit from a written cohabitation (pre-nuptial) agreement.

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