Can You Be Married and in a Common-Law Spouse At The Same Time?

Is it possible to be legally married to one person, while also being in a common-law relationship with another? In Canada, the answer might surprise you. The short answer is yes, it is legally possible.

Canadian law treats marriage and common-law relationships as two distinct legal concepts, each having its own criteria that must be satisfied before their legal rights and obligations arise. Marriage is a formal legal status created by ceremony and registration. Common-law status, on the other hand, is not something a couple applies for; rather, it is automatically recognized once the statutory requirements are satisfied. Since these two concepts operate independently, a person may be legally married to one partner while simultaneously meeting the statutory definition of a common-law partner with someone else. This situation most commonly occurs when married spouses have separated but not yet divorced, and one spouse begins cohabiting with a new partner. In these scenarios, your legal rights and obligations may change, and it is important to be aware of them and their implications.

How is Common-Law Defined

Canadian law does not have one universal definition of a common-law spouse. The definition varies depending on the statutory context.

Income Tax (Canada Revenue Agency)

Under s. 248(1) of the Income Tax Act, a “common-law partner” is defined as a person who cohabits at that time in a conjugal relationship with the taxpayer and

has cohabited throughout the 12-month period that ends at that time, or
would be the parent of a child of whom the taxpayer is a parent;

and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship.

Once these criteria are met, the Canada Revenue Agency will consider you common-law even if you are still legally married to someone else, provided you are legally separated from the married spouse. You must indicate any change of marital status; failing to accurately report your status as a common-law spouse, even when still legally married, can result in various penalties, including, but not limited to, tax implications such as reassessment and claw-backs of benefits.

Ontario Family Law

The Family Law Act (the “FLA”) defines spouse differently depending on the legal context. For most purposes, the term “spouse” refers to legally married couples, which means common-law partners are excluded from many of the rights and obligations that apply to married spouses. However, this definition expands when the FLA refers to spousal support. Under section 29 of the FLA, a spouse also includes unmarried parties who have cohabited:

continuously for a period of not less than three years, or
in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

This expanded legal definition creates an interesting legal consequence. A person may be legally married to one partner, yet still be considered a “spouse” for spousal support purposes with a different partner if the common-law criteria has been met. This illustrates that section 29 makes it possible to owe (or receive) spousal support to (or from) someone you are not legally married to.

For instance, in Carrigan v. Carrigan Estate, the Ontario Court of Appeal dealt with competing claims under a pension benefits statute. Ronald Carrigan had separated from his wife but never formally divorced. He later cohabited with a new partner, Ms. Quinn, and they met the requirements to be deemed common-law spouses. Upon Ronald Carrigan’s death, both ladies claimed the death benefit from his pension. The Court ruled in favour of his legal spouse because she was named as his beneficiary under the plan. This case not only illustrates the court’s recognition of both marriage and common-law partners occurring concurrently, but it also demonstrates the legal tension that can arise between common-law and legally married spouses.

Immigration Law

The Immigration, Refugees and Citizenship Canada (“IRCC”) also recognizes common-law partnerships, but only when:

the applicants are at least 18 years old;
there has been at least 12 consecutive months of living together without any long periods apart;
- if either of you left your home, it was for:
  - family obligations;
  - work or business travel.
- any time spent away from each other must have been short and temporary.

Therefore, for immigration purposes, you can be married and have a common-law spouse, but you cannot claim a common-law partner while still living with your married spouse. The IRCC requires strong evidence of separation from the married spouse (addresses, affidavits, agreements).

Takeaway

In Canada, it is possible to remain legally married to one person while also being recognized as having a common-law spouse with another, provided that the married relationship has ended and the statutory requirements of the new common-law relationship have been met. This duality can give rise to unexpected and competing legal rights and obligations. It is therefore important to understand whether you qualify as a common-law spouse and what rights may flow from that status in order to protect your interests.

This blog was co-authored by articling student Adriana Piccolo.