TORONTO LAWYERS FOR

Common-Law Marriage

 

The Ontario Family Law Act provides two different definitions of “spouse.” The first recognizes individuals who are married to each other in a traditional manner, while the second, expands the definition to include cohabiting couples for a minimum of three years, or individuals in a relationship who are parents of children.

The latter is often referred to colloquially as “common-law marriage.” Just like married spouses, a common-law couple may share expenses, income, household duties and child-rearing.


Equitable Relief Claims and Common-Law Marriages

 

The first definition of spouse, applies to property rights upon the breakdown of “marriage.” Unlike married spouses, common-law couples do not have statutory property rights. 

Married couples are presumptively entitled to an equalization of the parties’ net family properties accumulated during the marriage.

Meanwhile, common-law couples are not automatically eligible for this division. Joint owners of a home may request its partition and sale by virtue of the Partition Act. However, if the property is in the name of one partner only, a common-law spouse may have to rely on an equitable relief claim against the other partner to obtain an interest in the property.

Equitable relief includes claims for resulting and constructive trusts (and less often implied trust). In order to receive one of these remedies, an individual must generally demonstrate the following:

  • The enrichment of one partner;
  • The deprivation of the applicant partner;
  • And the absence of juristic reason for the enrichment.  

For example, if one partner paid for renovations in a home belonging to the other partner or mortgage payments were shared between both partners, a property claim could be submitted.

Additionally, common-law couples are not automatically entitled to property rights upon the death of the other spouse. If one partner dies and did not include the surviving common-law partner in their estate plan or will, he/she does not have a right to inherit property.

Claiming an interest in property as a common-law partner can be complicated and it is important to contact a family law lawyer to advise you in making appropriate claims.


Common-Law Marriages, Children and Spousal Support

 

The second definition of spouse applies to issues of support, both child and spousal, upon the termination of the couple’s relationship.

Parents of children, married or not, have an obligation to support their children.

In addition, a common-law partner may be obligated to provide spousal support in accordance with the Family Law Act. The entitlement, amount, and duration of the spousal support award will depend on a variety of factors, including the means and needs of each party, the financial ability of the paying party and the employment and self-sufficiency of the recipient party.


Cohabitation Agreements

 

In order to avoid some of the complexities upon potential relationship breakdown, create a cohabitation agreement with the help of a family law lawyer. It can help minimize or avoid misunderstanding, conflict and unnecessary legal proceedings.

Cohabitation agreements typically outline the rights and obligations of each party at the end of the relationship. If you are currently living with your partner or planning to move in with your partner in the near future and do not have an agreement in place, contact your family law lawyer.


Frequently Asked Questions (FAQs):

You are a common-law partner if, in accordance with the Family Law Act, you and your partner have lived together continuously for a period of not less than three years, or if you are in a relationship of some permanence and are parents of a child.
No, every Canadian province has its own legislation with particular rules pertaining to common-law partnerships and their rights and obligations. These are not the same across provinces. Please consult with the leading provincial legislation, and a lawyer in the province for more information.

We can help you find a resolution that will help your family move on.


if you are going through family issues or a relationship breakdown in the Greater Toronto Area, contact the laywers at MacDonald & Partners LLP and come into our office, in downtown Toronto, Etobicoke, Oakville and North York.

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