Common Law vs Marriage - What's the difference when it comes to property division in Ontario?

By Darren K. Ho, Barrister & Solicitor

As common law relationships continue to grow in Ontario, many people are still unaware of the legal ramifications, obligations and distinctions between common law spouses and married spouses upon separation. For example, in Ontario, unmarried spouses do not automatically inherit a right to an equalization claim to their partner’s property unless the property is held in both individual’s names.

Family law is an area of law that is jointly governed by both the federal government and provincial government. The Divorce Act is a federal legislation that governs divorce whereas the Family Law Act is a provincial legislation that governs property. In terms of child and spousal support, it is governed by both the federal and provincial legislation.

In this blog I will briefly go over the main difference between common law spouses versus married spouses and focus on the aspects that govern the province of Ontario.

How do I know if I’m living in a common law relationship?

An expanded definition of spouses can be found in section 29 of the Family Law Act. It must be noted that this definition only applies to support obligations (i.e spousal and child support). The definition is as follows:

- Two persons who are not married but:

1. have cohabitated (usually in a romantic relationship) for a period of not less than

three years; or

2. have a relationship of some permanence and you and your partner are the

natural or adoptive parent of a child.

If either one of the two situations mentioned above apply to you, then you are considered to be living in a common law relationship. Unfortunately, common law spouses do not have any rights under the Divorce Act which is strictly reserved for individuals who are married spouses.

If I don’t have any rights under the Divorce Act, then what rights do I have?

Although the Divorce Act does not apply to you, upon separation, property rights can be applicable under the Family Law Act. Usually these alternative solutions that are available to you are “equitable remedies”. The most common equitable claim is “unjust enrichments” which is defined as someone receiving gains without reimbursement where reimbursement would have been reasonably expected. For example, where one spouse spends significant time and money on improvements to the house solely in their partner's name, and does not receive benefits aside from being able to live in the house.

Aside from the Family Law Act it may also be prudent to have a lawyer assist you in drafting a Cohabitation Agreement which sets out how assets will be divided, and how much spousal support will be paid. Cohabitation Agreements do not have to be entered into before the relationship as the couple can also enter into Cohabitation Agreements after living together.

How does common law relationships differ from married spouses?

As defined in section 1(1) of the Family Law Act, a “spouse” means a person who is married or entered a marriage, and Part 1 of the Family Law Act entitles such spouses, upon marriage breakdown, to an equalization of net family property.

In summary, a spouse is entitled to half of the value of properties acquired during the marriage (and still existing at separation), and any gains in the value of property owned by that spouse is also shared. For example, if you are legally married, you are automatically entitled to share half of the value of your spouse’s net family property together with spousal or child support if applicable. In contrast, a common law spouse has no such rights to equalization in net family property but can still assert an equitable remedy claim such as one mentioned above.

Disclaimer

This blog sets out a variety of materials relating to the law to be used for education and non-commercial purposes only. The Author(s) of this blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgment before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.