For common-law couples—i.e., couples who have lived together but never married— there is no formal process that must be followed in order to separate, and no need for divorce. Common-law couples can dissolve their union at any time, with no required legal action.
However, if you have lived together for some time, and have children together or have jointly purchased numerous assets, the process of separating can be complicated. You may want to seek legal advice from an Ontario family lawyer and sign a separation agreement.
Common-law partners also do not have the same legal rights and obligations toward one another upon separation as do married couples. Below are descriptions of the key areas of difference between common-law and married couples. This information applies equally to same-sex and opposite-sex couples.
Division of Property
Part 1 of the Family Law Act (FLA), which provides for the equal division of financial gains made during a marriage, applies only to married couples. Unmarried couples are not legally entitled to the division of property. Because the FLA’s property-sharing regime does not apply to common-law partners, each partner is entitled only to what he or she brought into the relationship or acquired during it. For more information about what this means, and how to determine who owns what, see our article titled: Common-Law Relationships and Division of Property.
Spousal & Child Support
Part 3 of the Family Law Act, which governs support, applies to common-law couples who cohabited continuously for a period of 3 years or more, or who have cohabited in a relationship of some permanence and have natural or adoptive children together. If your relationship meets that definition, you may be entitled to spousal support or be obligated to pay your former partner spousal support. Spousal support is generally calculated the same way it is for married couples, although married couples would claim support under the Divorce Act.
Determining whether or not a couple has cohabited for 3 years can sometimes be difficult, if partners have retained separate residences or have spent long periods apart, perhaps for work. But if the partners held themselves out as spouses and have demonstrated a long-term commitment, and an integration of their lives, they can be considered to have cohabited despite maintaining separate residences for a specific purpose, such as employment or facilitating access to children, and despite spending long intervals of time apart.
Every parent has a legal duty to support any dependent children they have, to the extent they are able to. Child support is also determined the same way for married parents as for unmarried ones. Both are calculated using the Child Support Guidelines, regardless of whether the support claim is made under the Divorce Act (which applies only to married couples) or the Family Law Act.
Note that if your common-law partner has children from a former relationship who have been living with you, you may be considered be a parent to that child as well, for the purposes of child support. Anyone whom the court finds to have acted as a parent to a child (who is “in loco parentis,” or standing in the place of a parent) may be required to pay child support.
Child Custody & Access
Any parent can apply for custody of or access to a child. While married couples obtaining a divorce will apply for custody and access under the Divorce Act, unmarried couples will apply under the Children’s Law Reform Act (CLRA). The CLRA applies to cohabiting couples who decide to separate, those with children together who have never cohabited, and married couples who have decided to separate but are not seeking a divorce.
The Family Home in a Common-Law Relationship
Unlike married spouses, common-law partners do not have an equal right to possess the family (or matrimonial) home. Like any other property in a common-law relationship, the home belongs to the person who purchased it and whose name is on the title (or lease, if the home is rented).
If you own your home, you do have a legal right to kick your common-law partner out of it if your relationship breaks down. However, unless you are afraid for your own safety, it is not recommended that you do so. Courts generally do not look kindly on such action, particularly if your partner is in a less financially advantageous position than you are. If your partner applies for spousal support, your conduct regarding the home may influence the court’s award of spousal support.
If the matrimonial home is in your spouse’s name, you still do have some options if you wish to stay in the home, particularly in the short term:
- First, if you meet the definition of “spouse” under Part 3 of the Family Law Act and are therefore able to apply for spousal support, you may apply to the court to stay in the home as part of a support order. Under s. 34(1)(d) of the Family Law Act, the court can make an interim or final order in regard to the matrimonial home.
- Second, if your partner has threatened violence and you fear for your safety or the safety of your children, you can apply for a restraining order. Under s. 46(2) you can apply for a restraining order against someone you have cohabited with for any length of time. The court can make an interim or final restraining order.
- A third option is to claim a constructive trust. However, it is extraordinarily rare for a common-law spouse to be successful in making this type of argument for possession of the matrimonial home.
For additional insight on common-law separation and how an Ontario family lawyer can assist you, call Feldstein Family Law Group P.C. at (905) 581-7222. We can help!