Canadian Common Law Marriage

A marital relationship is an essential element for the spouse of a foreign national working or living in the United States. Suppose a qualifying marital relationship can be shown. In that case, the spouse of a foreign national on an E2, L1, H1B, TN, or any other non-immigrant visa in the United States can obtain dependent visa status. We discuss the viability of a Canadian common-law marriage for US immigration purposes here.

Common Law Marriages for US Immigration

For US immigration purposes common-law marriage is defined under the Foreign Affairs Manual, 9 FAM 102.8-1 (F)), as:

In the absence of a marriage certificate, an official verification, or a legal brief verifying full marital rights, a common law marriage or cohabitation is a “valid marriage” for purposes of visa adjudication only if it is legally recognized in the place in which the relationship was created and is fully equivalent in every respect to a traditional marriage.  To be “fully equivalent“, the relationship must bestow all the same legal rights and duties possessed by partners in a lawfully contracted marriage, including that:

  1. The relationship can only be terminated by divorce or death;
  2. There is a potential right to alimony;
  3. There is a right to intestate distribution of an estate; and
  4. There is a right of custody if there are children.

Common Law Relationships under Canadian Law

Under Canadian law, a common-law relationship is defined as:

[A] common-law partnership means that a couple have lived together for at least one year in a conjugal relationship. A common-law relationship exists from the day on which two individuals can provide evidence to support their cohabitation in a conjugal relationship. The onus is on the applicant to prove that they have been living common-law for at least one year before an application is received at CPC-M.

A common-law relationship is legally a de facto relationship, meaning that it must be established in each individual case, based on the facts. This is in contrast to a marriage, which is legally a de jure relationship, meaning that it has been established in law.

A common-law relationship is severed or ends upon the death of one partner or when at least one partner does not intend to continue the conjugal relationship.

Is Canadian common-law marriage recognized by US immigration?

A Canadian common-law marriage does not rise to the standard of a “full equivalent” relationship as a contracted marriage as it can be terminated by simply leaving the relationship OR not intending to continue the relationship. For US immigration purposes this is not sufficient and does not qualify as a marriage. Therefore, the Canadian common-law spouse of a non-immigrant visa holder cannot obtain dependant visa status. To qualify for dependant visa status, they must enter into a lawfully contracted marriage.

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