In a Common-Law Relationship? Know the Rights You May Be Giving Up and the Obligations You Can’t Avoid Upon Separation
As of 2018, approximately 973,613 individuals in Ontario are living in common-law relationships and this number has continued to increase each year. Many people are unaware of the rights you are not entitled to and the obligations you cannot avoid if you choose not to get married.
What Is a Common-Law Relationship?
A common-law relationship means you are living with a person you are not married to and with whom you have been cohabiting for at least 12 continuous months.
To “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.2
What Rights Are You Giving Up?
Division of Property
In Ontario, the Family Law Act does not give equal standing to common-law partners when it comes to property accumulated during the years of cohabitation.3 This means that you cannot claim an interest in the property owned by your former partner.
In a common-law relationship, the assets you bring into the relationship and any increase in value of these assets, continue to belong to you alone. There is no automatic right to divide this property or share in its value.
One way to get around this is through the doctrine of unjust enrichment, which applies when Partner #1 has retained a benefit from Partner #2 to Partner #2’s deprivation, and it would be unjust for the former to retain that benefit. In such a case, Partner #1 would be obliged to restore that benefit to Partner #2.4
To establish that Partner #1 has been enriched and Partner #2 correspondingly deprived, Partner #2 must show a tangible benefit that was passed from him or her to Partner #1.5 For example, Jane and John Doe have been living together for five years and John gave up working in order to help Jane pursue a degree and then build her business, without any compensation. Jane’s success was due, in part, to John’s contribution, and therefore, upon the breakdown of their relationship, a Court may award John an interest in Jane’s business.
Of note, you can equally divide Canada Pension Plan contributions that were made while living together if you have lived together for at least one year.6
Obligations You Can’t Avoid
Spousal Support
Even if you are not married, you may still be obligated to pay spousal support upon the breakdown of your relationship.
Pursuant to the Family Law Act, aside from married spouses, a spouse also includes two persons who are not married to each other and have cohabited:
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child.7
Every spouse has an obligation to provide support for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.8
Spousal support payments can be negotiated and agreed upon by the spouses and included in a Separation Agreement.
Choose the Right Lawyer
If you choose to be in a common-law relationship, protect your rights by signing a Cohabitation Agreement with your common-law partner. Should your relationship breakdown, consider a Separation Agreement. It is necessary for both common-law spouses to obtain independent legal advice before signing these agreements. As such, ensure you do your research to find a family lawyer that will meet your unique needs.
If you find yourself faced with the stress of going through a separation, the esteemed family lawyers at Sutherland Law located in the Greater Toronto Area can help you. Contact us today to learn more.
Please note that the foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances, please contact any of Sutherland Law's lawyers by e-mail or telephone.
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1 Statistics Canada. Table 17-10-0060-01 Estimates of population as of July 1st, by marital status or legal marital status, age and sex
2 Ibid at s. 1(1).
3 Wylie v. Leclair, 2003 CarswellOnt 1966 at para 16.
4 Moore v. Sweet, 2018 SCC 52, at para 35.
5 Ibid at para 41.
6 https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-split-credits.html
7 Family Law Act, R.S.O. 1990, c. F.3, s. 29.
8 Ibid at s. 30.