Property Division, Sharing & The Matrimonial Home

5 Things You Should Know About Common Law Relationships

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Written by Russell Alexander / (905) 655-6335

5 Things You Should Know About Common Law Relationships

Simply put, a common law relationship can arise any time two parties are living together (or “cohabiting”) without being formally married. The following is a brief list of the most important legal points to know about these kinds of relationships.

(Note that there can be different definitions and qualifying periods for common law relationships for matters that fall within the Canadian federal jurisdiction, as opposed to the provincial jurisdiction. These points refer to Ontario law in connection with support and property-division issues.)

1. To be considered a common law couple, you and your partner must live together in a “marriage-like” relationship.

This can include partners of the opposite sex, or of the same sex. There are no legal formalities, and no requirement that the parties undergo any sort of ceremony or process to formalize their arrangement.

2. You must have lived together continuously for three years, or for a shorter period of time if you have a child together and a “relationship of some permanence”.

There are many factors that courts consider when determining this aspect of the definition. In general, courts will consider the couple’s lifestyle, including shared accommodation, personal and sexual habits, social interaction, financial support for each other and for any children, and how the couple is perceived by society or the public. Not all of these elements must be present for a couple to be found to be living in a common law relationship, however. Also, although there is a requirement that the partners must live together “continuously” for three years, temporary break-ups without a settled intention to end the relationship will usually not interrupt the continuity of the relationship for these purposes.

3. You can enter into a cohabitation agreement, just like legally-married couples.

Partners in a common law relationship are entitled to enter into a cohabitation agreement as a means of protecting their property rights, or to settle upon financial obligations such as support, or to determine what rights each party would have upon separation. However – as with domestic contracts generally – any such agreement cannot purport to cover matters pertaining to access to or custody of children.

4. You may still have certain rights in connection with your partner’s property.

In Ontario, common law partners do not have the same property rights as people who are legally married. Generally speaking, property such as furniture and household items continues to be owned by the person who brought it into the union. However, in the right circumstances partners in a common law relationship may still make claims against each other’s property, based on the concept of “unjust enrichment.” This stems from the concept that one partner in the relationship should not be allowed to profit at the other partner’s expense, in terms of their respective contributions to the union. One partner can therefore apply to have the other partner compensate them accordingly, for the value of property, services, and benefits that the other partner received at the first partner’s expense.

5. You may still have the right to spousal support.

Even though married and common law couples are treated differently under the law with respect to property division, they have the same entitlement to spousal support from each other. Therefore, if the common law relationship between partners ends, one partner may seek spousal support from the other in the right circumstances. Normally, support is predicated on one partner being unable to support him or herself after the relationship has ended.

The question of whether any particular living arrangement amounts to a common law relationship will depend on the particular facts. Consultations to explore the issue with Mr. Alexander and or his staff can be scheduled by contacting 905.655.6335.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.