Common Law Couple Entitlements

Elisha Hale, LL.B (Hons) Dip.Division of Property, Divorce, Spousal Support0 Comments

Common Law Couples
A common law relationship is not defined universally in law. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. When you reside as common law spouses you are ‘spouses’ for the purpose of Government programs or benefits, except for those specifically applicable to ‘married spouses’. There is no formal separation process which must be followed.

Married Couples 
A married couple is a couple who have chosen to commit their lives together and have undertaken to legally bind their relationship. In order to end a marriage, you must obtain a divorce.

Spousal Support
Like married couples, common law partners may be entitled to make a claim for spousal support in the event of a relationship breakdown. The quantum and duration of spousal support will depend on a variety of factors such as the financial need of each party, the financial income of both parties, employment status and employment prospects of any party claiming the support.

Common law spouses do not have the same rights as married couples do to their spouse’s property, this includes rights to the ‘matrimonial home’. After separation, the common law partners have no entitlement to remain in the home unless their name is on the title or the lease. Common law couples do not have a one half right to assets which would be considered as ‘matrimonial’, unlike married couples and they will often only be entitled to leave the relationship with the property they brought into the relationship.

Equitable Relief
Where two parties have cohabited as common law spouses and share property i.e. a home, the law recognizes that one party should not benefit financially at the expense of the other party. Such an example would be where one spouse provides a significant financial and time contribution to improve the other spouses individually owned property where both spouses reside. The court will require you to prove that any benefit that you added was inconsistent with the benefit that you received of living in the property.

The court will decide on a discretionary basis whether to award a monetary remedy such as a lump sum equal to the contribution, or an alternative remedy such as a constructive trust which would give you an interest in the property ownership.

Courts may also consider whether a joint family venture exists. A joint family venture is found when the contributions of both spouses resulted in an accumulation of wealth. If the court finds a joint family venture exists, a remedy for unjust enrichment may be awarded.

Joint Debts
After separation, common law spouses are responsible for their own debts.  Common law spouses are both responsible for jointly-incurred debts.

Common law couples do not have a fundamental right of inheritance as a married couple would if one party dies. If the partner dies without a will, a common law partner will not inherit any part of the estate. However, a bereaved party may make a claim against the estate for dependency if the common law spouse was dependant on the deceased, and they were not provided for in the will. This must be filed within six months of the Executor being appointed.

If you have any questions regarding the above or require legal representation in respect to family lawdivision of propertygift law, or separation and divorce, please contact us for an initial consultation

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About the Author
Elisha Hale, LL.B (Hons) Dip.

Elisha Hale, LL.B (Hons) Dip.

Articling Student since September 2019, with a particular interest in business disputes, family law and mediation. Bio | Contact

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