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Common-law rights upon break-up

Region: Ontario Answer # 0140

Unless you have signed a cohabitation agreement, common-law spouses generally have fewer legal rights than married spouses upon break-up of a relationship. Under the Ontario Family Law Act, a couple is considered to be living in a common-law relationship:

  • if they have been living together intimately for at least three years, or
  • if they have been living together for less time but they have a child together.

Property rights common-law spouses do not have

There are two important property rights which married spouses have if they separate which common-law spouses do not have:

  1. Common-law spouses do not each have an equal right to live in the family home, unless they are both owners.
  2. Common-law spouses do not have an automatic right to equalize their net family property acquired during their relationship.

In most cases, both the family home and other property go to the person who is the owner. Each person usually keeps everything they personally own and nothing more.

There are two equitable remedies, unjust enrichment and constructive trust, that a common-law spouse may use to bring a claim for a share in property owned by the other common-law partner.


Rights common-law spouses do have

Although there are some rights that married spouses have that common-law spouses do not have, common-law spouses do have some important rights under the law. These include


Separation agreements

When common-law spouses separate, they can deal with all the issues of their separation by entering into a formal separation agreement. This agreement can set out how property will be divided, who the children will live with and how much child support and spousal support will be paid. Although it is possible to write your own separation agreement, you should consult a lawyer to make sure that both you and your common-law spouse understand your legal rights. A lawyer can also make sure that your separation agreement is clear, complete and legally binding.

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Getting the advice and legal help you need

For legal advice and assistance regarding common-law relationships and other family law matters, contact a family law lawyer.

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