Common-Law Separation

In a common-law relationship (whether same or opposite sex), common-law spouses are not legally married to each other. To be considered common-law spouses in Ontario, the couple must live together in a conjugal relationship for a period of 3 years (if they have no children together), be in a relationship of some permanence if they are parents of a child, including adopted children.

If the relationship breaks down, they may decide to separate and live apart. Common-law couples cannot make a claim for divorce, since they are not legally married. Either spouse may end the relationship at any time. However, common-law spouses do not have the same rights and obligations as legally married couples do when the relationship ends.

What are some of the issues that may come up in a common-law separation?

Some of the issues that can arise from the common-law separation:

  1. Property division;
    • If one spouse paid solely for property or other assets, ownership may belong to that spouse.
    • If paid jointly, then ownership may be divided pro rata.
    • A party may have legitimate trust claims in the other’s property.
  2. Family Residence;
    • Unlike legally married couples, common-law spouses do not have an equal right to possession of the home.
    • Ownership/division is likely determined by the financial investment made by each spouse.
  3. Debts;
    • Each person is responsible for his/her own debt. If both names are on a line of credit, mortgage or loan, the creditor can go after either or both spouses.
  4. Constructive trust (aka unjust enrichment);
    • A claim can be made if one partner provided added benefit (by way of work done, or funds given) that increased the value of an asset belonging to the other partner (e.g. residential home, bank accounts, etc.). If so, it is unfair for the other partner to benefit from and keep the entire value of the asset.
  5. Joint family venture;
    • Can be claimed if the relationship dynamic is proven to be akin to that of a legal marriage
    • If a joint family venture is determined, then the abandoned spouse must show that his/her partner is benefitting unfairly from the relationship break down and/or that the abandoned spouse has been left at a unfair disadvantage/deficit as a result.
  6. Child custody or access;
    • Like married parents, custody and access arrangements will be made based on the best interests of the child(ren).
  7. Spousal support;
    • Can be claimed under the Family Law Act if couples meet the definition of spouse.

As complicated as separation can be, it is important that you seek expert legal advice from one of our Toronto Family Law Lawyers at Frenkel Tobin to help you determine your legal rights and obligations.