Why get married? It turns out that, besides the love, affection, and companionship provided by their spouses, married couples also enjoy quite a few entitlements in law not available to”common-law” couples.
To a great extent in modern Canadian jurisprudence, cohabiting couples who have lived together for a certain amount of time enjoy a vast degree of protection in common law and under the legislation (for example, spousal support under the Family Law Act* and dependency claims under the Succession Law Reform Act^). But a few entitlements remain in the exclusive domain of married couples.
Unlike cohabiting couples, who generally are required to prove that they have lived together for a certain number of years before they become entitled to the spousal benefits, married couples (same-sex or opposite-sex) are instantly recognized in Canada. It doesn’t matter if the couple have only met yesterday and got married today (as so do many in Las Vegas); the fact that they’re married entitles them to spousal support and property division rights under the Family Law Act in Ontario if their relationship should breakdown (although the amount in question is debatable).
Under the Family Law Act, married spouses are entitled to certain posessory rights with respect to the matrimonial home, regardless of which spouse owns it. For example, both spouses are entitled to live in the home, and neither may dispose of or encumber an interest of the matrimonial home without the other’s consent or a court order.
Married spouses also automatically become each other’s official next of kin. This entitles a spouse to give (or withhold) necessary consent for healthcare and other purposes. Generally, the married spouse has priority in giving or withholding such consent over blood relations such as parents.
The same can’t be said for unmarried cohabitants, who often have to prove their relationship before they are recognized as the next of kin. This can create a significant obstacle in emergency situations.
Further, if the relationship breaks down, the Family Law Act distinguishes clearly between married couples and cohabiting couples. Only married couples are entitled to the statutory right of equalization, meaning, the equal division of properties accumulated during the marriage.
What’s more, if one married spouse predeceases the other, the survivor is entitled to an election between the equalization payment and what has been left for him or her under the will or, where there isn’t a will, under the law of intestacy. Unfortunately, this option isn’t available to cohabiting couples, even though under common law they may be recognized as spouses for other purposes.
Finally, in litigation, there is a limited privilege (“marital privilege“) for married couples, in that one spouse can’t be compelled to testify against the other regarding confidential information communicated between them during marriage. However, this rule has very limited application in modern Canadian law, as it has been narrowly defined by the courts, with various exceptions attached to it.#
*R.S.O. 1990, c. F3
^R.S.O. 1990, c. S.26
# see e.g., Evidence Act, R.S.O. 1996, c. E.23, s.11
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