Common Law Relationships, Marriage & Property Rights

In the past, most Canadians got a marriage license and had children. Today more and more couples are opting to have a common-law relationship. According to the 2016 General Social Survey (GSS), over one-fifth (21.3%) of all Canadian couples were living common law. That is over 3 times more than in 1981.

This blog will outline some of the legal differences between marriage and common law relationships during a breakup.

What Does it Mean to Be in a Common Law Relationship?

Generally in Ontario, a couple are considered common-law spouses if they have been living together in a conjugal relationship for three years. “Conjugal” means more than merely a sexual relationship. It is one where there is sharing of a home, finances, or emotions. A couple may be considered common law spouses after one year of cohabitation if they have a child together.

Breaking up: Property Rights Outside Marriage

Common law partners do not have the right to ‘half’ the assets when breaking up. That only applies to divorces following a legal marriage.

Under section 1 of the Family Law Act, a spouse is defined specifically as someone who has entered into a legal marriage. Only legally married spouses are subject to equalization of their net worth in the event of a breakdown of the relationship. 

During the breakdown of a common-law relationship, property and any increase in property value remains with the person who bought it.

There is, however, a caveat to this Family Law Act regime. If a common-law spouse meaningfully contributed to the property during the relationship, they may be entitled to a portion of its value. For example, a house both partners live in is exclusively owned by one partner, but the other partner has contributed by investing in renovations. In this case, the remedy would likely be a constructive trust. This trust acts to prevent the title-holding partner from being unjustly enriched. The amount will be determined by the judge creating the constructive trust.

As a common-law spouse during a breakup, you may have a claim for unjust enrichment.  If you are looking to protect your assets, there are steps you can take. By booking a consultation with Larson Lawyers’ Family Law lawyer, Lydia Leroux, you can become informed of your options. 

How Can I Protect My Assets?

By creating a cohabitation agreement before living together, or during your time together, you can agree to how things will be divided up if you break up.

The benefit of having a cohabitation agreement in place is that it allows both you and your partner to set reasonable expectations for one another. This will potentially save you time and money in future legal disputes over assets after you and your partner have broken up. Contacting Lydia Leroux about a cohabitation agreement is the first step in entering into your relationship with mutual honesty and shared expectations.