Common Law spouses vs Married Spouses - what is the difference?

Many people misunderstand the differences between the rights and obligations of married spouses, as opposed to 'common law' spouses.

In Ontario, being 'common law' is defined as two persons who are not married to each other and have cohabited either (a) continuously for a period of not less than three years or (b) are the parents of a child together in a relationship of some permanence.

Being a common law spouse does not automatically entitle you to the same division of property that married spouses have.  Married spouses have a legislated right to 'equalization' of net family property. Common law spouses have no such automatic right, but may have other types of claims available to them to address property disputes.

Since the law created a new type of claim called a “joint family venture” it has become more difficult (and costly) to determine what entitlement a common law spouse may have to property built up during a relationship.

For all of these reasons, we recommend entering into a “cohabitation agreement” or “marriage contract” (more commonly known as a “pre-nup”) at the outset of the relationship, which determines what will happen with property and support, upon a breakdown of the relationship.

If you are separating and need assistance making your way through the process, or are entering into a relationship and need help preparing a contract, please give us a call.