Common Law Relationships

Transcript from Common Law Relationships Video

Please note: The script may not be exactly what is spoken, but contains the same information as presented in the video.

Many people believe that by not getting married they are avoiding complications if and when the relationship stops working. This is often not the case. In fact the dissolution of a common law relationship is often more complicated than that of a married couple. When parties are married there is legislation that governs property division that does not apply to common law couples. Unmarried parties are often surprised to learn that there are significant differences, legally, between married and unmarried couples.

First, let’s take a step back and define what a common law couple is? There are different definitions of common law couples for tax and family law purposes. The Family Law Act at s. 29 defines “spouse” for the purpose of support obligations. Spouse includes two persons who are not married but have cohabitated continuously for a period of not less than three years or are in a relationship of some permanence and they share a natural or adoptive child.

Please note that this definition only applies for support purposes. The property division sections of the Family Law Act are limited to married couples. Also, it may sound redundant, but the Divorce Act does not apply to common law couples.

Therefore, if you are in a long-term relationship with an individual, but are not married you cannot depend on legislation for an equitable division of the assets. For example if you have a common law couple which has acquired property during the course of the relationship, but only one party holds title to the property then the untitled spouse may have to make a trust claim through the common law in order to realize some interest in the property. The party making the trust claim will have the legal onus of demonstrating they meet the test for the type of trust they are claiming.

If the claiming party cannot meet the legal test, then they may find themselves walking away from a long term relationship with little or no assets.

If you are an untitled common law spouse you also cannot depend on the special provisions of the Family Law Act for matrimonial homes. These only apply to married couples. For example, married couples have an equal possessorary right to the matrimonial home. Even if not on title both parties have a right to remain in the home. This is not the case for common law couples.

I am glad you could join me to today to discuss the topic of common law relationships. This session is merely an introduction of some of the many issues that may arise upon the dissolution of a common law relationship. I look forward to exploring this topic further with you in the future. Thank you.