Differences Between Common Law Partners and Married Spouses Upon Separation and Divorce
In the Province of Ontario, common law spouses are defined as romantic partners who live together for longer than 3 years, or who have lived together for at least one year and have a child together. This definition is true only in Ontario. Every province, and even the federal government has a different definition of what makes two people a “common law couple”. That is why you might file taxes with the government of Canada as a common law spouse after having only lived together for one year, even though in Ontario you would not be considered common law until 3 years had passed.
Property Division: The Ontario Family Law Act states that married couples have an automatic entitlement to half of the combined marital property upon separation. In Ontario, common law spouses do not fall under the property division sections of Family Law Act and, therefore, have no right to ask for a division of their partner’s property. The Ontario government specifically chose to recognize that common law spouses are distinct/different from married couples and that the act of marriage is an extra step that people can choose to make if they want the right to divide property when they separate. Only if they marry (then separate) do they have the right and obligation to share their property with their spouse. The government recognizes the autonomy of two people who choose to live together in a romantic relationship but who have decided, for whatever reason, not to get married.
Typically, if a common law relationship ends, all of the property that is in each party’s name remains their property, with no divisions or exceptions. A common law spouse can make a special type of trust claim, asking the court to grant them a portion of the other’s property, however, this is the exception to the rule.
Spousal Support: What can happen between common law spouses, however, is a claim for spousal support. Spousal support is defined in section 33(8) of the Family Law Act. According to the Act, the purpose of spousal support is to:
8(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts 1(Family Property) and II (Matrimonial Home).
In the above, “spouse” includes both common law and married spouses. There is no differentiation between the two, so whether married or not, at separation if one party has a valid support claim, they may be eligible to receive it and the other party may be ordered to pay.
The best way to protect against Spousal Support claims is to have a valid Cohabitation Agreement whereby both parties expressly waive their rights to any future support claims. These can also detail how property will be divided if you decide to own property together (such as purchasing a house together).
If you are concerned about your rights or obligations as a common law spouse, or are interested in discussing a Cohabitation Agreement, the lawyers at M. G. Michaels & Associates would be happy to assist and answer any questions you may have so contact us at (905) 426-1476, on our Facebook page or by email to firstname.lastname@example.org.