Married spouses and common law spouses have different rights in family law.

In a common law relationship, one becomes a spouse after three years of living together continuously, or upon becoming parents, either naturally or through adoption, and where there is a relationship of some permanence. For married couples, a spousal relationship arises immediately upon marriage, regardless of how long the couple has been cohabiting.

A married spouse could be entitled to spousal support after one month of marriage; whereas a party in a living with their partner in a common-law relationship for two years and eleven months, and who did not have any children together, would be ineligible for spousal support.

Married spouses have the right to live in the matrimonial home regardless of who has title to the property. A common law spouse who is not on title to the family residence does not have the same rights. He or she cannot make a claim for exclusive possession of the family residence upon separation (the right to reside in the home to the exclusion of the other), nor is the common law spouse’s consent required for transactions affecting the home including sale, refinancing or transfer of title. No matter how long a couple resides in a common law relationship, they will not have the same rights to a family residence as a spouse would have to a matrimonial home under the Family Law Act.

The time period to make a claim for property also differs. In most cases, common law spouses have two years to make a property claim from the date of separation. Married spouse have the limitation of the earlier of six years from the date of separation or two years from the date of divorce. It should also be noted that under the Family Law Act, common law spouses do not have the inherent right to make a claim for property. Despite the absence of express provisions in the law allowing for common law property claims in Ontario, this fact has not prevented the Courts from applying “equitable” remedies, particular where there is a finding that common law spouses were involved in a joint family venture, in order to share property between the spouses. To best protect your interests, one would be well advised to enter into a Cohabitation Agreement which clearly sets out each parties’ intentions and expectations with respect to spousal support and property in the event of a breakdown in relationship.

Efua Cobbina
Baker and Baker Professional Corporation
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