If you are living common law, or hoping to do so, here are a few tips you should consider in terms of your relationship and what happens if it breaks down:
- Generally, you will be considered to be common law if you and your partner reside together for three years or more, or if you both have a child together.
- If you have a child together, but your relationship breaks down afterwards, the same rules apply to you for child support as they do for married spouses, including paying Table child support and contributing to the child’s special and extraordinary expenses (including post-secondary education), if you are not the primary care parent (subject to a few exceptions).
- The same thing applies for spousal support between common law spouses you are treated legally as if you were had been married, more or less, for spousal support purposes. Generally, the legal obligation to support your common law partner will arise if you have lived together continuously for three years or more, or are in a relationship of some permanence and have a child together.
- Only married couples share the value of their property when their relationship breaks down. This is done by a fairly complicated formula, known as equalizing each spouses net family property. Effectively, the spouses split-the-difference between the net worth each accumulated during the marriage, subject to certain exclusions. However, for two people who live together at common law, but who do not actually marry, the law is different. When two people live together in a common law relationship, their property routinely is co-mingled and inter-mixed. If they separate, disagreements often arise about what each person will take from the relationship. For example, if one partner has contributed time or work that helps the other buy or maintain property, such as a home, this may give rise to a claim for the non-owner spouse. Generally, common law spouses have to make more complicated legal claims against their separated partner, if they feel there has been unfairness arise from the relationship and its breakdown, such as family joint venture, constructive trust and unjust enrichment claims. In any event, property division and settlement for common law spouses is very different than for married spouses and, generally, more complicated to address legally quite often.
- Unlike married spouses, common law spouses do not have an inalienable, statutory and equal right to stay in the family home following a relationship breakdown, if that spouses name is not legally reflected on the title of the property. What’s more, the titled spouse (who actually is registered as the owner) can sell or re-mortgage the property without the others written permission, subject to the Court intervening if requested by the non-titled party. This is another example of how common law spouses are treated differently in Ontario law than married spouses.
- Because of the greater uncertainty for common law spouses and the different law that will apply on relationship breakdown, a domestic contract, such as a cohabitation agreement, should be considered to at least minimize the uncertainty that can arise on separation and, at the same time, offer protection to a common law spouse during the relationship, particularly if that partner is contributing money, time or effort to the others asset(s), or otherwise providing family support while the other is advancing his or her professional goals. In short, if you are common law, you should have a domestic contract in place (ideally early in the relationship) to minimize your worry, uncertainty about the future and to ensure that you are properly compensated for your contribution to the relationship.
This WARDS LAWYERS PC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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