When Do We Become Common-law Spouses?
Some of the most common questions I get asked when people find out I am a family lawyer is “what am I getting into by moving in with my girlfriend/boyfriend?” or “when/how do we become common-law?”. They’re pretty important questions.
I think one of the reasons why there is so much confusion is because this issue is legislated by the provinces, so it depends on where you live. That means my answer to these questions only applies to Ontario.
In Ontario, spousal support (or what they call alimony in the U.S.) and the division of property upon separation is governed by the Family Law Act.
Support
For the purposes of support, non-married couples become “spouses” or “common-law partners” if they:
- Have lived together continuously for at least three years; or
- Have a child together and are in a relationship of some permanence.
That means, if you do not have children together (biological or adoptive), you only start risking/being entitled to spousal support after living together for three years.
If you do have a child together, and are in a relationship (more than a one-night stand, but how much more is pretty unclear), you may have to pay, or you may be entitled to claim, spousal support if you separate.
Canada Revenue Agency currently treats an individual’s partner as a common-law spouse for tax purposes after a couple has lived together for one year or when they have a child together. This does not impact your family law rights or obligations.
Property
According to the Family Law Act, non-married couples are not entitled to the property division regime known as the equalization payment. That means that no matter how long you live with your partner, you will not be entitled to divide property.
However, common-law couples can gain an interest in their partner’s property through equitable remedies. There is no requirement that you live with someone for a certain amount of time before being entitled to make these claims. Read the full article “What does it mean to be a common-law spouse” for more information on these claims.
Cohabitation agreements
The default position created by the Family Law Act can be altered by contract. That means you can opt in to property sharing, or opt out of spousal support, or clarify/waive each other’s rights to unjust enrichment by signing a cohabitation agreement.
It never hurts to contact a lawyer to do a check-up and see if your current rights are aligned with your expectations, especially if you have been in a lengthy common-law relationship.