Fact Sheet: Common Law Relationships

Publication Date: 
2012
Resource Origin: 
Springtide Resources

by Pamela Cross, LLB

Many people live together without being married, either for short or long periods of time.  For some, this is a transitional stage as they move towards marriage.  For others, the relationship is intended by both to be casual and not permanent. 

For still others, it is an intentional and long-term relationship, in which both people feel the same commitments to one another as married people do.

In relationships where there is woman abuse, the two partners may have different expectations of the nature of the commitment in a common-law union, which can leave the woman very exposed.

While some legal rights and responsibilities are the same for married and common law partners, not all are.

How long do I have to live with someone to be "common law?"

There is no magic period of time living together that creates a common-law relationship that has legal rights and responsibilities.  Different laws set out different periods of time.

While my children be illegitimate?

No.  The marital status of the parents has no legal impact on children.  All legal issues relating to children are the same, whether or not the parents are married to each other - they both have an equal right to custody of the children and both have financial responsibilities towards the children.

Do I have property rights?

Property rights are very different for married and unmarried people.  When people are married, the law requires them to share the value of their "net family property" equally when the marriage ends.  There is no such rule for common law couples.  In this situation, the people own whatever they brought into the relationship and whatever they bought during it.

This can be a real problem for women, since men often have more income to spend on purchases.  An abusive man may insist that the deed to the family home be in his name.

The woman can make a claim for a share of the value of this property, but she will have to prove that she made contributions to it.  For example, she could show the court that she made monthly mortgage payments or paid for a major renovation to the house or cared for the man's children so he could go to work.

Can I get exclusive possession of the home?

A woman who is not married to her partner cannot make an application for exclusive possession of the matrimonial home unless her name is on the deed.

What about spousal support?

The Family Law Act provides a definition of spouse for the purpose of spousal support that includes both married and unmarried people, which means the rights and responsibilities related to spousal support apply to common-law couples just as they do to married couples.

The people are considered spouses if they have live together continuously for at least three years or, if they have a child, if they have a relationship of some permanence.

What is a cohabitation agreement?

Often, couples who decide to live together without marrying will enter into a cohabitation agreement, which is one kind of domestic contract.  This agreement can set out all the elements of how the couple plans to handle their relationship and how they will deal with issues such as spousal support and division of property if their relationship ends.

A cohabitation agreement cannot make plans for the custody of or access to the children.

If the couple marries after they have written a cohabitation agreement, it will become their marriage contract.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca