Understanding Common Law Relationship

Some people never want to marry, but that doesn’t mean they don’t want to commit themselves to a monogamous, lasting relationship. If you don’t want to marry your significant other, you are not alone.

According to the last Census of Population in Canada, there are over 1.5 million common law couple families in the country—accounting for close to 17 percent of all census families. But what, exactly, constitutes a common law relationship?

A common law relationship involves two people who live in the same residence in a marriage-like relationship. These individuals can be of the opposite or same sex, but no legal formalities are required for a court to consider the relationship common law.

Common Law and Cohabitation

In most provinces, including Ontario, couples must cohabitate for three years or have a child together to be considered a common law couple. When determining cohabitation, courts look at the following aspects of the couples’ life:

• Sexual – Did the couple have an intimate relationship? Did the individual parties maintain an interdependence on the other?
• Social – Did others perceive the couple as married or sexually involved? Did the couple portray themselves as such?
• Societal – Did the community give the couple special treatment (usually afforded to only married couples)?
• Residential – Did the couple share the same residence? Did one of the individual parties often stay at the other’s home overnight?
• Financial – Did the couple rely on one another for financial support?
• Personal (offspring) – Did the couple have children? If one individual came into the relationship with a child, did the other individual treat the child like their own?

Ontario Family Law requires an unmarried couple to live together for three continuous years—any separation affects the continuity of cohabitation. If a couple separates for even one week during those three years, the courts won’t see it as a continuous or common law relationship.

In some common law relationships, both parties maintain separate residences but constantly spend long periods of time at the other’s home. A court will look at the seriousness of the relationship and may determine that a couple with separate homes is still considered to be cohabitating and in a common law relationship.

Common Law and Spousal Support

In Ontario, courts consider the person you cohabitate with for three years (or more) to be an equivalent of your spouse. Once your partner is considered a spouse, they have the same rights and obligations that legally married couples have regarding spousal support.

A common law relationship doesn’t negatively affect the entitlement and amounts of spousal support. Instead, the courts will take the following information into account for both you and your partner:

• Income
• Assets
• Age
• Standard of living
• Self-sufficiency

Courts will also look at the contribution you and your partner made toward each other’s careers and any economic and financial hardship that arose from your separation and subsequent breakup.

Common Law and Property Rights

Matrimonial Home Special Status
Although the Ontario Family Law court system awards “matrimonial home special status” (credit for any asset you bring into a marriage) to married couples, it doesn’t grant unmarried cohabitating partners the same benefit. The court system won’t automatically reward you half of you and your partner’s belongings once you separate. Instead, the court might determine that each partner is entitled to the belongings purchased and titled in their name.

If you bought or renovated a house together, the person listed on the title gets the house. If you separate and your partner wants you to leave the home, and you are not listed on the title, the court can evict you. If that seems unfair, speak with a lawyer about your legal rights regarding compensation for your losses.

Constructive Trust
In some cases, courts will consider “constructive trust” as a legally binding agreement. Constructive trust implies that while one partner holds legal title to an asset, the other partner is still entitled to the benefits. Your family law lawyer will help you determine whether constructive trust will help your case.

Common Law and Death

Many common law relationships end when a partner passes away. Keep yourself—and your belongings—protected and prepare a will or get life insurance.

Prepare a Will
If your partner dies, you won’t automatically be entitled to their every asset. In Ontario, you must be named in a will or as a beneficiary. Speak with your partner and schedule to prepare a will together.

Get Life Insurance
Some people are unwilling to prepare a will. If this is the case with your partner, consider getting life insurance together. Your insurance company can help you make it clear that your partner is the beneficiary and is entitled to every asset and piece of property.

If both partners are committed to making the relationship work, a common law relationship can help you feel more at home without signing a marriage certificate. Speak with your partner to determine the status of your relationship and, in the event of a separation, make sure you have every legal document on hand to have as a reference during the legal separation process.

Contact your local family law lawyers for more information about common law relationships, cohabitation, and separation.