Am I Living Common Law?
What does that Mean?
Many people ask whether they are living in a common-law relationship. Not many people know when they are. Even fewer understand what that means.
In Ontario, you are living in a Common Law Relationship (for family law purposes) if either:
- you have cohabitated (lived together in a romantic relationship) with another person (their gender does not matter) for a period of at least three years.
- you are cohabitating with another person in a relationship of some permanence and you and your partner are the natural or adoptive parent of a child. (If you have a child, the length of time you live together does not matter.)
There are no other circumstances that result in two people living in a “common law” relationship under Ontario Law. However, any two people who live together for any period of time can a) be subject of a restraining order and b) enter into a cohabitation agreement (the preferable course of action is to sign the cohabitation agreement before you live together.)
Note that the definition of "common law" for tax purposes is a little different for tax purposes. While it is similar, you only have to be living with your partner for 12 consecutive months, or have a child with them (by birth, adoption, or similar) to be considered common law for tax purposes. For more on that, see this page on the Canada Revenue Agency Website.
You and your partner cannot live “common law” if you are already married. You are either “married to” or “living common law with” another person, you cannot be both.
However, you can be legally married to one person and be living common law with another. A marriage does not end until you are divorced. However, two people who are separated and who live together for more than 3 years, or have a child together, are “common law spouses.” In those circumstances, a person can have two “spouses.” If a person who was married still lives in the original “matrimonial home”, that person must still get his or her married spouse’s consent to sell or mortgage (or otherwise affect his or her interest in) the original matrimonial home. Having a new common law spouse does not stop a property from being a matrimonial home. Only a divorce from the married spouse can do that.
Is Being Common Law the Same As Being Married?
Living common law is very different from being being married. In Ontario, there are only two main consequences of living “common law”:
- You and your partner develop spousal support obligations to each other;
- You and your partner are “spouses” for the purpose of government programs and for workplace benefits, except those that specifically apply to only “married spouses”.
It used to be that two people had to be “common law spouses” to get family court restraining orders against each other, but the Ontario Government changed the Family Law Act in 2009 to allow people to get restraining orders against each other if they have lived together for any period of time.
20 - What Living Common Law Means (and Doesn't)
29 - Common Law Separation and Property Division
Common law partners are not entitled to share in the value of each other’s property pursuant to the Family Law Act. The equalization of net family property provisions of that law apply only to married spouses. There is no statute in Ontario that gives common law partners any interest in their partner’s property. Common law couples are choosing not make themselves subject to the property sharing regime that covers married couples. A common law partner does not have any more claims in law to the other partner’s property than they would if the partners were not living common law.
In the same way common law partners do not have any right to stay in the “family home” unless they are on title or on the lease. Married couples can have “matrimonial homes” in which both spouses are legally to stay even after separation. Those provisions do not apply to unmarried couples and there are no similar provisions that apply to unmarried couples.
If you want to hear more about the law of being common law, the above issues about common law relationships (and some of the ones covered below) are discussed in this video:
Additional Legal Remedies Available for Common Law Partners
Ontario law recognizes that common law partners have chosen not to be married and not to have the laws that apply to married spouses apply to them. However, that does not mean that common law partners cannot get any help in an unfair situation.
Several of the principals that apply to correct any unfair situation can be applied to common law relationships. Where a common law couple have acted for years like they were sharing their assets, or where one partner made a lot of contributions, either with money or his or her own labour, to the other partner’s assets, there are remedies available. These are called “equitable remedies” and essentially the idea is that where the partners treated an assets as if they both own it, the Ontario Superior Court of Justice can declare that the partners share ownership.
These “equitable remedies” are very complex principals. To make this type of claim, a party needs a lawyer. However, if you are walking away from a common law relationship with nothing, while your former partners is taking all the assets, hiring a lawyer can be a good investment. Listen to this podcast for a more information on these equitable remedies for common law couples.
Common law partners can also enter into an agreement that sets out how the assets will be divided and what spousal support will be paid. The contracts, which are called “cohabitation agreements”, are very similar to marriage contracts. They allow common law spouses to decide how several issues (they are not binding with regard to parenting and child support) will be dealt with after if the common law partners separate. Unless the agreement is set aside, the common law spouses will have whatever rights with regard to property and spousal support that the agreement sets out. Among the requirements for a court to enforce such an agreement is that both parties had lawyers, full financial disclosure from the other partner and took part in negotiating the terms. This podcast explains the Ontario Family Law on cohabitation agreements, including what you can and cannot do with a cohabitation agreement and how to get one that will hold up.
It is possible to sign a valid and enforceable cohabitation agreement after relationship. You don’t have to sign the cohabitation agreement before moving in together. Couples can sign cohabitation agreements after living together for years - and in some cases being able to do so can save a relationship. For more on that, watch the video below:
There may be other situations that give a common law spouse a legal claim against the other common law spouse. They still have all the claims that any other two people might have against each other. If you are leaving a common law relationship in unfair circumstances, it is best to speak to a lawyer.
You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody and parenting legal issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer.
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