JENNIFER ANISTON AND JUSTIN THEROUX: MARRIED OR COMMON LAW PARTNERS AND WHY IT MATTERS
While headlines suggest that Jennifer Aniston and Justin Theroux are heading towards divorce, TMZ Reports that there is no evidence that Jennifer Aniston and Justin Theroux were ever married. In fact, after checking the marriage records in L.A. County dating back to 2010, TMZ confirms that there is no record of the couple’s marriage license. TMZ explains that while it is possible that Aniston and Theroux could have obtained a marriage license from another California County, sources reveal that the parties may not be legally married.
In Ontario, how do Common Law separations differ from those of Legally Married couples?
The Marriage Act holds that in order for a couple to be considered legally married, they must first apply and be issued a marriage license. Notably, a valid marriage requires that the parties consent to the marriage, that there is capacity to consent, that there is a ceremony and registration conducted by a recognized authority, and that there no prior existing un-divorced marriage. There are no such formalities involved with a common law relationship.
The Ontario Family Law Act treats separating common law spouses very similarly to legally married spouses with respect to support, but treats them differently with respect to property division and with respect to treatment of the matrimonial home.
Notably, like legally married spouses, common law spouses may be entitled to spousal support. Specifically, so long as common law partners have cohabitated together for at least three years or have a child together while in a relationship of some permanence, spousal support may be ordered based on a spouse’s need in order to relieve an economic disadvantage stemming from the dissolution of the relationship.
With respect to property division on the breakdown of a relationship, married spouses have an automatic entitlement to an equal share of all assets acquire during the marriage, however, no such right exists for common law spouses. Property and assets in the names of both spouses will have its value divided equally between couple. Notably, a common-law partner who finds that the common law division rules to division of assets lead to an unfair result can make a claim for unjust enrichment or a constructive trust. Such claims are often raised when one spouse unfairly benefited at the other’s expense. If proven, the court will order an equitable resolution as it sees fit.
Finally, the Family Law Act, holds that married couples have special possessory rights to the matrimonial home. Specifically, both spouses have an equal right to remain in the home upon separation, even if one spouse holds the title. Notably, due to the special treatment of the matrimonial home, the home may not be sold or mortgaged without the consent of both spouses. Furthermore, the value of the matrimonial home must be included in the equalization process.
Conversely, the home that common law partners share during the relationship does not receive special treatment. To explain, whoever has title of the home keeps the home at separation and has the right to continue residing there. Specifically, the non-titled partner has no right to say in the home and can be evicted if the relationship ends. With that being said, the non-titled spouse may make a claim for a beneficial interest in the home.