Introduction
As May turns to June in the year 2022, the “wedding season” is upon us, and with this year being the first year where Covid-19 restrictions have been lifted to allow for general attendance as in pre-Covid years, the invitations are starting to trickle in. In the past, when I would go to weddings, people who knew me and knew that I am a family law lawyer would ask me if I have ever been tempted to “speak now, or forever hold my peace.” Although I have a flare for the dramatic, it is not my place to speak out and ask the happy couple if they have properly thought about the legal consequences of their nuptials. The same goes for those couples who decide to “loosely tie the knot,” i.e. decide to live together, without the need of walking down the aisle. Unless I am asked for my legal thoughts and opinions, I do not share them with the couple.
But that got me thinking. As the number of marriage breakdowns continues to climb, and as couples separate in droves after living together, should there be a requirement for parties who plan to marry, or even live together, to complete a legal seminar on the consequences of their plan to “live happily ever after?”
As such, this blog was born. It is a message to all of those with love in their hearts and who throw the odds out the window and decide to get married or live together. I will never dissuade people from finding love, but I will want to advise them of the grown-up consequences if the relationship does not last a lifetime. And this is not a blog on doing a “pre-nup” – I have already done a blog on that topic. Feel free to look it up!
Like other blogs, this blog is not a comprehensive book on the subject, but rather, my observations of having practiced family law for almost 30 years. Not all lawyers will agree with my comments, and some may feel I left other considerations out. So treat this blog as a starting point if you are about to start off on a long-term relationship, but yet properly wonder to yourself, “What if things go south? What am I on the hook for?” Continue reading – you might just be a little surprised. And remember, to be forewarned is to be forearmed.
Children and Decision-Making Responsibility/Parenting Time
One of the reason people decide to settle down in marriage or cohabitation is to start a family, or in some cases, to continue growing their family. When making this decision, you need to think about how you are going to be as a parent, and how the other person will be. Having children can often be a great stressor on a relationship, and this is compounded if the child has any special needs. Have you thought about the impact of children on your career, on your ability to pursue other goals you may have, or that your significant other may have? Have you discussed the issues of parenting styles, faith, schooling, manner of discipline, extra-curricular activities, etc. There is so much to consider that many people don’t ever think about it until the need is thrust upon them. Assumptions are made, and in a crisis, a relationship can come undone by differing opinions.
Having said all that, what if the relationship sours? Who will have day-to-day care of the children? How often will the other party see the children, and on what terms, if any? What if one parent wants to move away for work, or they met someone new? What school will the kids go to? What about seeing extended family? There is a lot to consider.
As you will hear me say throughout this blog, the best indicator of future performance is looking at the past or current performance. Do they have children form previous relationships? What does that parent-child look like? Is you future partner a caring and loving parent, or are they happier without the responsibilities of parenthood? Do they see the child regularly and are involved, or have they “given up” on the child/children, and spend their time blaming the other parent for all their miseries in life?
So, along with the questions I posed in this part, ask yourself these questions before you make the commitment to marry or live together:
- Do I know what my partner will be like as a parent?
- Will they maintain modern parenting views, or will they be traditionists?
- Will I have to put my career and other goals on hold? Does my partner know this and agree to this?
- Does my partner have any sort of trait that would negatively impact their ability to parent, such as excessive drinking, drug use, gambling addiction, social media addiction, other addictions (pornography), anger management, abusive and/or violent tendencies?
- What if we split up? The best predictor of future behaviour is past behaviour. So, will they be a) child-focused, conciliatory, cooperative, mature; or b) are they likely to be mean-spirited, jealous, abusive, envious, vengeful, narcissistic, immature, selfish, bitter?
Children and Child Support
As I stated above, starting a family, or in some cases, growing a family is the basis behind the intended permanency of a relationship. If you do not have children, please understand that once you do have children, the law expects you to be legally and financially responsible for them. It does not matter whether you planned the birth, or whether you had septuplets. The mere fact of having them is enough to place the burden on you. If your relationship with your partner ends, the issue of child support will certainly be raised. Questions will be asked: who will pay? how much? and for how long? Generally speaking, the answers are: a) the party who does not have primary care of the children, b) according to the Child Support Guidelines (which takes into consideration your income and the number of children entitled to child support), and c) until at least 18, and it can go much longer than that.
There are many other factors to consider with regards to child support that are beyond the scope of this simple blog, but suffice is to say, if you have children, before or after the date of marriage or cohabitation, if the relationship ends, be prepared to pay child support. On the other side of the coin, be prepared to chase your ex for child support if they do not want to pay. Rare is the person who gleefully pays for child support to their former partner. Most have to be convinced (or ordered) that it is their obligation.
So, ask yourself these questions before you make the commitment to marry or live together:
- Do I really know what this person does for a living and what they make?
- Does their lifestyle match their spending habits, or is something not quite right?
- Am I ready to be financially responsible for child support for the next 20 plus years?
- Am I aware that as my income goes up, so does my obligation for child support?
- Am I aware that there are other expenses I will be responsible for, e.g. special/extraordinary expenses, e.g. afterschool activities, braces, tuition and related expenses?
- Am I aware that it does not matter who was to blame for the end of the relationship?
- Am I aware that it does not matter if I wanted the child/children or not?
- Am I aware that it may not matter how often I see the children? (there are some exceptions, but that’s another blog topic for another day)
- Am I aware that it does not matter if the children do not want to see me?
- Am I aware that it may not matter if I have other children with a new partner? (you cannot prefer your new family to your old family)
As I have said, the best indicator of future performance is looking at the past or current performance. Does my future spouse/partner have any current child support obligations? Are they paying support regularly, or are they avoiding them? Is FRO coming after my spouse/partner and threatening default hearings, licenses suspensions, or jail, for non-payment of child support? Are they considered a dead-beat? Will I then be asked to open up my financial dealings for the “sins of my spouse/partner” (the payor)? What if we split up, and we have kids, will I be just another recipient, desperately waiting in line for monthly child support that may never come?
Sorry to burst the romantic balloon, but these are the questions you have to consider before you take the plunge!
Step-Children
As with children that the couple brings into the relationship together (through birth or through adoption), there may be a financial obligation on the person in the relationship who is not the biological parent to the child or children of the other party. If I were to marry a woman who had two children from a previous relationship, and we decide to either get married or live together with her children, I need to be aware that if I act as a parent to those children, then should my relationship with their mother end, I may have to pay support for them as if I were their biological dad. The same questions will be asked: do I have to pay, and if so, how much and for how long? Practically speaking, if I leave the relationship and I am in any way financially well-off, I can expect a claim for me to pay for another person’s child support obligations because they may be mine now, too.
Once again, on the opposite side of the coin, if I brought children into a relationship and it sours after some time, can I prevent my now ex-wife/partner from having parenting time with my children? What about if we have a blended family? Can the children make claims to have contact with their siblings and half-siblings?
So, ask yourself the same questions as I listed above, as well as these others:
- Did I treat my spouse’s/partner’s child/children as my own?
- Did I hold out to others that they were just like my very own? What did my neighbours, the children’s friends, and others consider of the situation?
- Did I take them to their activities and their educational or healthcare appointments?
- Did we travel as a family?
- Did they see me as another parent, or simply as their mom’s boyfriend?
- Did they call me “Mom” or “Dad,” or did they call me by my first name? Did I get Mother’s Day/Father’s Day cards or photos from/with them?
Spousal Support
One of the other main reasons people couple up is for the economic strength that generally follows when parties live together or get married. Combined incomes or combined earning potentials allow for a couple to enjoy a better standard of living in many cases.
But what if you decide to connect when one or both of you are in the “upswing” of your careers. Let’s say spouse A makes personal sacrifices, works long hours, forsakes family opportunities, all in pursuit of climbing a corporate ladder, or just to accept as many overtime shifts as you can, to pay for the little extras in life that give you joy, such as a bigger home, a nicer car, a long vacation, more money for retirement, etc. What if spouse B coincidentally has to make their own sacrifices, such as putting career placement/advancement on hold to raise children, time and time again, not taking any overtime or “schmoosing opportunities,” because they had to get home to cook, clean and/or get the kids ready for after school events. Is it fair that spouse A gets to enjoy the spoils of their career moves and spouse B does not? What if the spouses separate before spouse B can enjoy the spoils of spouse A’s advancement?
On the side, what if one of you has an economic fallout, loses their job, or is in an industry that is facing strikes, short and long-term uncertainty? What is the person gets sick, or develops an addiction, or by chance is involved in a catastrophic life event (cancer, motor vehicle accident, serious victim of a crime)? The vow of “in sickness and in health, for richer or poorer” is often the quickly broken when a person is confronted with the grim reality that their partner will not longer function as the once did.
So, ask yourself these questions before you make the commitment to marry or live together:
- Do I really know what this person does for a living and what they make?
- Does their lifestyle match their spending habits, or is something not quite right?
- What will be the trigger for me to pay/receive spousal support? And for how long?
- Am I ready to be financially responsible for the support of my partner until they reach age 65, or even until they die? If I am the intended recipient, can I count on them to pay me for that long?
- Am I aware that as my income goes up, so could my obligation to pay spousal support? If I am the intended recipient, can I count on my ex to pay me more as is needed?
- Am I aware that even if my income goes down, I may be forced to maintain my existing obligation for spousal support? If I am the intended recipient, will I spend years tied up in court to try and extract more support from the other side, and will I ever actually see any of that money?
- Am I aware that it does not matter who was to blame for the end of the relationship?
- Am I aware that it does not matter if I wanted my spouse to work outside the home and he/she choose not to?
- As the intended payor, am I aware that it may not matter if I re-marry or re-couple with a new partner? If I am the intended recipient, am I aware that it will most likely matter if I re-marry or re-couple with a new partner?
So much for the idea of being a power couple for life.
Property Rights
Probably one of the biggest misconceptions/misunderstandings in romantic couplings deals with the way the law treats couples who marry vs. those who decide to live together. Generally speaking, there is little to no difference as to how the law treats couples whether you were married or simply lived together, with one major exception: property rights.
I have had many clients spend years together in a common law relationship and then wake up one day to the horrible realization that their former common law spouse/partner structured their financial affairs and lifestyle to minimize their exposure upon the end of the relationship.
Once again, this blog will not deal with all the “ins and outs” of property rights of common law spouses vs. married spouses, but you should know that if you make a claim to an asset upon common law relationship breakdown, you should be legal owner to the asset. If not, you may find it a difficult hill to climb to claim a right to it at a later date.
So, ask yourself these questions:
- If I am not “on title” as an owner to the property, as a common law spouse, do I have the right to remain in the family home upon the end of the relationship? (Answer: No)
- If I am not “on title” as an owner to the property, as a married spouse, do I have the right to remain in the matrimonial home upon the end of the marriage? (Answer: Yes)
- If I am not “on title” as an owner to the property, as a common law spouse, am I entitled to one-half of the equity in the family home upon the end of the relationship? (Answer: Not necessarily)
- If I am not “on title” as an owner to the property, as a married spouse, am I entitled to one-half of the equity in the matrimonial home upon the end of the marriage? (Answer: Yes)
- If I am not “on title” as an owner to the property, as a common law spouse, am I entitled to one-half of the net family property upon the end of the relationship? (Answer: No)
- If I am not “on title” as an owner to the property, as a married spouse, am I entitled to one-half of the net family property upon the end of the marriage? (Answer: Yes)
- As a common law spouse, am I entitled to one-half of my spouse’s pension upon the end of the relationship? (Answer: No)
- As a married spouse, am I entitled to one-half of my spouse’s pension upon the end of the marriage? (Answer: Yes, it’s value is included in the NFP calculation)
- Is my common law spouse or spouse trying to keep me from being “on title?”
- Is my common law spouse or spouse trying to keep me “in the dark” about their assets/debts (at the time of the start of the relationship, throughout the relationship, or even at the end of the relationship)?
- As a common law spouse, am I going to be responsible for my spouse’s debts? (Answer: Maybe)
- As a married spouse, am I going to be responsible for my spouse’s debts? (Answer: Maybe)
As you can see, there is a lot to consider.
Conclusion
As I finish writing this blog I stop and wonder why anyone would choose to be a common law spouse as opposed to a married spouse, if nothing but for the protection the law offers me. But aside from that, if I were to read just this blog and see how many bad things can go wrong, I might just be persuaded to maintain my own residence and strike a casual yet non-committal relationship, rather than live with someone or get married.
It’s interesting that more people are actually starting to do just that, especially amongst those in their late 50s to early 90s who have gone through the emotional and financial bitterness and heartache of a divorce (or two, or three).
But be aware that the law may treat you as a common law spouse even if you did not think you were one. There was a case last year where a woman successfully claimed spousal support from her millionaire partner. They lived in separate homes and managed their affairs separately, but otherwise held themselves out as a couple. Despite the best of intentions, the facts of a case will ultimately govern whether you are, or are not, “on the hook.”