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Property rights in common-law break-ups

Region: Ontario Answer # 0142

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.

Rights common-law spouses do not have

There are two important 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.
  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 home and other property go to the person who is the owner. Each person usually keeps everything they brought into the relationship, property they personally own, and jointly owned property is shared. Having said that however, the law does recognize that a spouse may have acquired a right to be compensated for contributions made to their common-law spouse’s property. Such rights can be asserted through unjust enrichment and constructive trust claims.

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