The Ugly and Confusing Fallout From Common Law Breakups

Jun 8, 2016
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Who needs marriage when you’re already in a rock-solid long term relationship? When you split up after living together for years and years, you have the same legal standing as a married couple that gets a divorce… right? Under Ontario law, that unfortunately isn’t the case. Unmarried couples don’t have the same rights as their married peers. Read on to learn why ignorance about your rights as the member of a “common law” couple could have negative effects if you break up.

Common Law Marriage in Ontario

The province of Ontario recognizes that unmarried couples have legal status, but that legal status is different than that of a married couple.

In order for the law to recognize you as an unmarried couple, you have to be in a conjugal relationship for three years or more, or be in a conjugal relationship for more than one year with a child.

While the law might recognize that you’re a couple, you can’t register your relationship with the provincial department that records vital statistics. In fact, legal professionals say that even though you can call the relationship a “common law marriage,” that’s not a recognized legal term in Ontario.

What Happens When a Common Law Marriage Ends?

Like traditional marriages, common law relationships sometimes end. And like their married counterparts, unmarried couples sometimes have messy breakups. The difference is that common law couples don’t have the same rights as married people do.

For example, their property rights are different. In Ontario, any property you bring into a common law relationship remains yours. You don’t have to share it or divide its value.

The only time that you must divide or share the value of a property is if it’s something you bought jointly. For example, if the two of you bought a home together, each of you would have a share.

What if you didn’t buy the property together, but you contributed financially to it? Let’s say you made mortgage payments, or you carried out renovations. A judge might decide to award you a share of the property based on your contribution or by how much your contribution raised the property’s value.

That being said, unless your name is on the lease or the deed, you don’t have a legal right to continue living in the home the two of you shared during your relationship.

How Can You Protect Your Rights in a Common Law Relationship?

Just because you’re not married doesn’t mean that you have fewer rights under the law. What it does mean is that you have to be proactive in protecting those rights.

The best way to ensure that both you and your partner are treated fairly in the event of a breakup is to sign a cohabitation agreement. A cohabitation agreement is quite similar to a prenuptial agreement; it spells out what property can be divided and how the division will take place. It can also set the terms for spousal support and deal with jointly-held debts. The major difference between a cohabitation agreement and a prenup is that you can sign a cohabitation agreement at any point in the relationship, whereas the prenup is meant to be signed before the marriage takes place.

Get Expert Legal Advice on Your Cohabitation Agreement

If you’re considering signing a cohabitation agreement, you should talk to an experienced lawyer. A lawyer can advise you on drafting a cohabitation agreement that will protect you and stand up in court.

Galbraith Family Law lawyers are trained in Collaborative Practice, and we have been named the top firm by the Barrie Examiner multiple times. Our legal insights have also been featured in the Globe and Mail and Lawyers Weekly.

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About Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.