Common Law Relationships
There is more to it then just living together
Table of Contents
2. Difference between Common-law and Cohabitation
When are you considered to be in a Common-law Relationship
In Ontario you are considered to be in a common law relationship if:
You have lived with your partner for 3 years or more; or
You have lived with your partner for 1 year and have a child together.
What’s the difference between cohabiting and common law?
Common law relationships have a degree of permanence through the couple’s relationship dynamics. Cohabitation covers a wide variety of scenarios and has a broader definition than common law relationships. For example, simply living together for 5 years as roommates can be considered cohabitation but would not automatically result in a common law relationship.
If unsure whether you meet the common law definition, consider the following elements in your cohabitation:
Social behaviors towards and around each other
Children (whether they are biologically yours or your partners’, do you act as a parental figure to them?)
Economic support between each other
Cohabitation conditions: How often do you spend time with each other under the same residence and how regular is this time spent?
Need for Cohabitation Agreement. Be proactive!
If you are thinking about cohabitating or if you are already in a common law relationship, you should consider a cohabitation agreement. This is a domestic contract between you and your partner that will address your rights in the event your relationship ends. It will cover your spousal support and property rights – you can choose to protect these rights or to waive these rights.
A cohabitation agreement is intended to address a wide array of scenarios. For example, if you buy a property and pay off the mortgage to said property, you may wish to retain all the rights to this property in the event you separate. Though the whole of the property is under your name, your stay-at-home partner may seek both spousal support and an equitable remedy against you for their contributions to the property. A cohabitation agreement can cover this scenario to protect your rights in the event any disagreements arise.
Effect of Previous Marriage on Cohabitation
If you meet the common law definition, you will still possess your common law rights regardless of whether or not you or your common law spouse are still married to someone else. An existing traditional marriage will not affect your common law rights until you cease your relationship.
Considerations on the Breakdown of a Common-law Relationship
The separation process between common law couples is different from a separating in a marriage – but can be no less complicated.
There are several considerations you should make:
How long have you lived together and what were your living arrangements? Consider the circumstances surrounding your relationship. Have you two simply been cohabitating like roommates or were you in a relationship of permanence?
Do you have any children? Is there anyone dependent on you and/or your spouse? The Family Law Act allows common law spouses to apply for child support. This application can be made regardless of whether the child is biologically linked to the other or are treated like an adopted child. You will also want to consider the custody and access arrangements of the child(ren).
Do you or your spouse own any property? Though common law couples do not have automatic equalization rights, you will also need to consider property division. If the property legally belongs to only your spouse, they have a legal right to remove you from the property without your consent. The same applies vice versa.
Are either of you financially supporting the other? You or your spouse may be able to claim spousal support against the other. Dependent on the circumstances, you or your spouse may be entitled to claim equitable rights such as constructive trust or unjust enrichment.
Will you be amicable after separating? If you are amicable during the separation process and are in agreement on how you wish to divide your rights and obligations – have this all documented in a separation agreement. It will be effective in protecting your established rights and waivers in the event there are any disagreements in the future. If unable to agree on how to divide your rights, you and your spouse can still hire separate lawyers to negotiate the terms into your separation agreement.
Before taking any steps, consult with a family lawyer about your specific scenario to ensure your rights are properly protected.
The safest option following the end of a common law relationship is to have a separation agreement in place.