Macaulay is Home Alone Again!

The 27-year-old Black Swan actress, Mila Kunis, and 30-year-old former child star, Macaulay Culkin, have recently ended their eight year relationship. Tabloids suggest that the couple separated nearly six months back but chose not to publicize their split as Mila was in the midst of promoting her new movie.

While not married, the couple may be considered to be in a common law relationship. A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or of the opposite sex. No legal formalities are required. The period of time two persons must cohabit before being considered to be in a common law relationship depends on whether the issue that needs to be resolved falls within federal or provincial jurisdiction. Matters that fall within federal jurisdiction include federal government pensions and division of the Canada Pension Plan upon separation. Property division is determined by provincial law and each province has its own definition of what a common law spouse is.

For Ontario family law purposes, to be considered a common law couple, two persons must cohabit 3 years, or have a child and a relationship of some permanence.

The judiciary considers a number of factors when determining whether a couple falls within the definition of a common law relationship. Generally, a judge will look at the lifestyle of the parties in a common law relationship. In Ontario, the case Molodowich v. Penttinen(1980) (Ont. Dist.Ct.), sets out the generally accepted characteristics of a conjugal relationship. Such characteristics include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, in this decision it was also recognized that these elements may be present in varying degrees and not all are required for the finding of a common law relationship.

Although the details of Mila and Macaulay's relationship are unknown, assuming the couple is found to be in a common law relationship, certain rights and obligations may arise.

While persons in common law relationships do not have the same property rights as married persons, common law partners are entitled to make claims for unjust enrichment. Unjust enrichment is general equitable principle that states that no person should be allowed to profit at another’s expense without making restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained. As such, a person in a common law relationship may claim that their common law partner was unjustly enriched by their contributions during the course of the relationship and they must be compensated accordingly.

Despite the differential treatment of married and common law couples with respect to property upon dissolution of the relationship, common law couples have the same entitlement to spousal support as married couples. That is, if your common law relationship ends, and you do not have the means to sustain yourself, like married persons, you may seek spousal support from your former partner. The quantum of support can be decided by negotiation, mediation, collaborative law or arbitration. If the parties are unable to agree to quantum on their own, they may go to the court and ask a judge to make a determination in this regard.

As common law relationships are the fastest growing family structure in Canada, couples in common law relationships should sign a cohabitation agreement to protect their rights. A cohabitation agreement can outline matters such as financial arrangements, the amount of support payable and who will move out of the couple's home upon separation. This agreement cannot, however, make determinations with respect to custody or access.

Again, while it is unclear whether Mila and Macaulay would be considered a common law couple, the above summarizes the issues they may be forced to tackle if found to be common law spouses as their eight year relationship has now come to an end.