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  • Where is it accepted

    I need to know which countried accept common law marriages. My husband passed away and according to US social security I was a 4 days short of the 90 days necessary to qualify for widow's pension. I was told if I traveled in a country which allowed common law marriages prior to my marriage I could use that as time married.

  • #2
    mck,

    I'm not sure what you mean but in Ontario Canada for support purposes,
    Family Law Act

    R.S.O. 1990, Chapter F.3

    1. (1) In this Act,
    “spouse” means either of two persons who,

    (a) are married to each other, or

    (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1); 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2).



    PART III

    SUPPORT OBLIGATIONS

    Definitions

    29. In this Part,

    “dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

    “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

    (a) continuously for a period of not less than three years, or

    (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
    (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6).

    With that said we also have other statues depending on the circumstance. The federal government defines common law for pension purposes if parties co-habitate continuously for 1 year. This applies in every jurisdiction in Canada.

    lv

    Comment


    • #3
      Scotland comes to mind as a place that recognizes common law marriages. Several American states do too (e.g. Texas).

      I'd double check with a local lawyer about the advice you received. It doesn't sound right to me. In states where common law marriage doesn't exist, they'll generally recognize a common law marriage that occurred in another state. But I doubt that you can establish a common law marriage after the fact simply by moving to another jurisdiction.
      Ottawa Divorce

      Comment


      • #4
        Jeff,

        But I doubt that you can establish a common law marriage after the fact simply by moving to another jurisdiction.
        This is a very interesting subject. I am curious now on a scenario such as this

        a couple lived in Quebec for 2 years continuously then moved to Ontario lived together for a further 1.5 years then they separate,

        Could they apply the time they co-habitated together for 2 years in Quebec or does the 3 years have to be in Ontario before section 29(a) applies of the Family Law Act R.SO. 1990

        lv

        Comment


        • #5
          Just to clarify one thing. In the US, common law marriage means something different. In several states, if you live together for a long enough time, you are considered married, even though you never went through a marriage ceremony (this is not the case in Canada). Then, issues arise if people from those states move to another state that doesn't recognize common law marriages, or if people from Canada who live common law move to a state that does recognize common law marriages.

          In answer to your question logicalvelocity, Ontario would recognize the time in Quebec. It's just an issue of amount of time lived together; the jurisdiction in which that occured doesn't matter.

          Another issue that arises is if a couple lives together for long enough to be considered common law in their home province, then one spouse moves to another province where they have not lived together long enough to be recognized as common law. So, for instance, assuming no children, in BC, after living together for 2 years, you can claim spousal support. In Ontario, it's 3 years. Say, that a couple who lives in BC separates after 2 1/2 years and then one of them moves to Ontario and starts an application for spousal support. While ordinarily they wouldn't be entitled to spousal support in Ontario because the couple had not lived together for 3 years, in a case like this Ontario will normally apply BC law and allow the spousal support.
          Ottawa Divorce

          Comment


          • #6
            Thanks Jeff,

            Basically the court would apply the law of the jurisdiction where they are deemed to be common law. as per your example. This makes sense.

            I read an article on your main site in regards to Manitoba now recognizing solely owned property and division thereof in common law relationships. I wonder if this would create a trend in other provinces amending their statutes to similar.

            I remember reading a case - Nova Scotia, where a party brought forth an action and the court held something to the effect that there is a distinction between married and common law property division, that being a couple has a choice on whether to get married or to reside in a common law relationship. I must find and read that case again.

            Interesting reading

            lv

            Comment


            • #7
              LV, not sure whether this is the case you're thinking about (Walsh v. Bona):
              http://scc.lexum.umontreal.ca/en/200...2002scc83.html
              Ottawa Divorce

              Comment


              • #8
                new to fourm

                I have been in a cooman law relatationship for 9 years.we have a nine year old daughter.I own a house,two vehilce which are all in my name only.same as mortgage in my name only.I found out my comman law partner has a very serious drug problem.It has been going on for a while.When i found out i tries everything to help her.I now have told her we are over.she has left with my child.She is theatning me she wants half the house,I have been paying the mortgage all the time she has never contributed.she has worked though.my mortgage was payed of due to my didsabillity of me going blind and deaf.she wants half of everything.she also has a trade iand is now on welfare.she alos has had me aressted and charged saying i threatned her.i spent the night in jail for false accusations.can she take my house and whateverelse is iinmy name.Im worried cause i cannot work nomore due to my disability.what is going to happen.im tryimg to fight for full custody.Im getting sick of this cause imm worried that she will have me sell the house.i dont want to sell it and i cant afford to buy her out.can she come afterme for half.i reallly need help here

                Comment


                • #9
                  Jeff,

                  I believe that is the case.

                  lv

                  Comment


                  • #10
                    mikeds53,

                    What jurisdiction are you located in?

                    lv

                    Comment


                    • #11
                      Thanks Jeff,

                      this is the case, for some reason, this thread made me think of it.


                      Paragraph 201:

                      201 It is by choice that married couples are subject to the obligations of marriage. When couples undertake such a life project, they commit to respect the consequences and obligations flowing from their choice. The choice to be subject to such obligations and to undertake a life-long commitment underlies and legitimates the system of benefits and obligations attached to marriage generally, and, in particular, those relating to matrimonial assets. To accept the respondent Walsh’s argument — thereby extending the presumption of equal division of matrimonial assets to common law couples — would be to intrude into the most personal and intimate of life choices by imposing a system of obligations on people who never consented to such a system. In effect, to presume that common law couples want to be bound by the same obligations as married couples is contrary to their choice to live in a common law relationship without the obligations of marriage.

                      After thinking about it further, I am curious why the plaintiff in the cited action never brought a claim for unjust enrichment in lieu of.

                      lv
                      Last edited by logicalvelocity; 06-12-2006, 12:57 AM.

                      Comment


                      • #12
                        LV , there seems to be alot of talk about common law rights re: division of property etc., in various recent posts.

                        I thought I had a good grasp on the legalities of common law , now I'm totally confused.
                        1)If a couple lives together for three years or more they have more legal rights re property. Is this b/c it's easier to prove unjust enrichment(longer time period)?

                        2) If the couple has a child together common law is then considered 1 year?

                        3) After three years+ of common law,spousal support is more likely given than after 1 year.(I seem to be viewing common law in terms of 1 year and 3+ years as the important time factors).

                        4)child support is given regardless, That I'm clear on ha.

                        5)Regardless of how long a couple have lived together whatever they brought into the relationship etc. house, remains that individual's after separation. The accumulated items throughout relationship are divided. How are they divided if no receipts; is it is he said/ she said scenario?

                        Could you please clarify. I'm not in this type of relationship I just want to keep the old noggin' tuned and informed.

                        Thanks very much. I don't know how you're ALWAYS so up-to-date AND knowledgeable about most everything. Did you order, install, download.... anything,, legal software that gives you access to all case law, precedent cases and their relevance etc.?
                        Anyway, enough 'buttering up' ha.
                        Thanks LV.

                        Comment


                        • #13
                          On the subject of common law, my brother, who lives in Florida, is now common law, for the past 4-5 months. Personally, I don't like the idea....she doesn't own anything, but seems to have enough money for manicures etc. regularly.
                          My brother owns his house and is doing well financially(not rich, just comfortable). I think he liked that she is a free-spirit, party girl and his ex-wife was an exreme homebody.
                          Any information for his protection would be helpful. I already advised him to have her sign and agreement (stating she's not entitled to anything of his) b/f she moved in, but he dismissed the topic. He's such a trusting, nice person, I don't want to see him lose what he's worked so hard for.

                          Thanks to anyone who can advise.

                          P.S Instead of going after someone's money, she should just be happy she lives in Florida Ha

                          Comment


                          • #14
                            GKTT,

                            you mentioned,

                            1)If a couple lives together for three years or more they have more legal rights re property. Is this b/c it's easier to prove unjust enrichment(longer time period)?
                            see this post with links to a number of Ontario cases for unjust enrichment. It appears that the requirement for unjust enrichment is to establish the three thresholds as listed in the the leading SCC case. Peter v. Beblow
                            http://scc.lexum.umontreal.ca/en/199...3rcs1-980.html
                            Once the merits of the unjust enrichment claim has been established, question is how much. See this thread. The posted cases support this theory.

                            http://www.ottawadivorce.com/forum/c...ust+enrichment

                            2) If the couple has a child together common law is then considered 1 year?
                            If a couple are living together in a relationship of some permanence, the moment a child is born they become spouses for spousal support purposes. Moreover, once this occurs, one party could take the other spouses name.

                            3) After three years+ of common law,spousal support is more likely given than after 1 year.(I seem to be viewing common law in terms of 1 year and 3+ years as the important time factors).
                            To be entitled to spousal support under the Family Law Act R.S.O. 1990 c.F.3
                            for common law situations, 3 years CONTINUOUS cohabitation or in a relationship of some permanence and have a child together. This entitles you to make the claim. To be awarded the claim, one party has to have means and the other party need with first consideration given to support of the child.

                            For quantum and duration of spousal support, will depend on the facts of the particular case.


                            4)child support is given regardless, That I'm clear on ha.
                            Child support is definite but amount can vary depended on custodial regime in place and living arrangement of child.

                            5)Regardless of how long a couple have lived together whatever they brought into the relationship etc. house, remains that individual's after separation. The accumulated items throughout relationship are divided. How are they divided if no receipts; is it is he said/ she said scenario?
                            The accumulated items acquired throughout the duration of the relationship should be divided equally. It is difficult to cut a fridge in half. Seems like a compromise is in order. Evidence in family law is balance of probabilities, so yes it is "he said she said" if no receipts. However is it worth spending 10k litigating over a 500 television.

                            You can find appellant ONT case law here at

                            http://www.ontariocourts.on.ca/appeal.htm

                            You can find Canadian Law here at
                            http://www.canlii.org/index_en.html

                            You can find SCC cases here

                            http://scc.lexum.umontreal.ca/en/

                            You can find Ontario elaws here at

                            http://www.e-laws.gov.on.ca/tocBrowseCL_E.asp?lang=en

                            You can find federal statutes here

                            http://laws.justice.gc.ca/en/index.html

                            I should aslo mention that Jeff has a wealth of information posted at his main sites on various issues.

                            http://www.ottawadivorce.com/

                            lv
                            Last edited by logicalvelocity; 06-12-2006, 11:28 PM.

                            Comment


                            • #15
                              LV,
                              Thanks for the wealth of info.; you never cease to amaze me.
                              Thanks for clarifying all that for me.
                              Seems it's more vague with common law, marriage is 50/50 regadless.
                              Not that I intend to be in this type of relationship but it's nice to have the knowledge.
                              I'm going to list those sites in my favourites to review at my leisure.
                              Thanks so much.
                              God knows the truth.

                              Comment

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