What a common law spouse is entitled to will depend on the specific situation. Establishing property rights upon the breakdown of a common law relationship is much easier and far less expensive with a valid cohabitation agreement.
Without being legally married, common law spouses differ from married couples in that they are not legally required to split the property they acquired over the course of the relationship. This is because couples are not afforded any property rights under the Family Law Act.
However, common law spouses still have property rights, as well as potential rights to spousal or child support. It’s just a little messier. Property belongs to the person who bought it, and there is no requirement to split any increase in value to the property they brought into the relationship. This can get tricky, as often couples have different arrangements when it comes to purchasing furniture, household items and other household goods.
For this reason, the common law couple’s shared assets or one spouse’s significant financial contributions to a partner’s property can lead to bitter and complicated disputes. For these couples, the division of property when ending the relationship often becomes a matter of legal action, especially if one partner feels they are not getting their fair share.
Without the legal requirement to divide property upon separation, many common law couples choose to enter into domestic contracts that set out their respective rights to property upon the breakdown of the relationship. Establishing each partner’s entitlements and rights upon the breakdown of a relationship is much easier and far less expensive with a valid cohabitation agreement.
What Qualifies as a Common Law Relationship?
In Ontario, you are considered to be common law in two situations:
- when you are cohabiting (in a conjugal relationship) with a person who is not your legally married spouse for at least three years; or
- you have a child by birth or adoption with a person and you have been cohabiting in a relationship of some permanence.
What Happens when a Common Law Couple Break Up?
You can end a common law relationship at any time with no required legal action. Unlike married couples, you do not need a formal divorce to end your relationship.
What is a Common Law Spouse Entitled to?
In short, it depends. When you end a common law relationship in Ontario, you are not required to split property. Furniture, clothing and other household items belong to the person who brought them into the home. In other words: what’s yours is yours, but what is shared may not be yours!
The Family Law Act provides a legal framework for a division of property of married couples, but common law couples do not have statutory property rights. However, common law couples can still make claims for constructive trust. A constructive trust is remedy in law that is awarded when the court determines that it would be wrong for the person who has legal title to the asset to deny the beneficial interest of another person in the asset.
Cohabitation agreements
Moving in together is a big step. Take it on solid ground.
A cohabitation agreement protects you both, whatever comes next.
How do you Decide How Property is Divided?
The Supreme Court of Canada in the case of Kerr v. Baranow established that unjust enrichment will be the test to determine the distribution of assets when spouses end a common law relationship.
Unjust enrichment is a legal principle. It describes a situation where there is a benefit gained by one common law partner at the expense of the other common law partner and where there is no legal reason for this benefit to have happened. So, if you are not legally on title but contributed to your spouse’s property, you may have a right to part of it. However, you’ll have to prove your entitlement.
Unless your spouse agrees to pay you back, you may have to turn to the courts for help. If you cannot amicably decide on how to divide property upon the end of your common law relationship, you may need to initiate a legal action.
Can a common law spouse take half of your assets in Ontario?
Not necessarily. Furniture, clothing and other household items belong to the person who brought them into the home. However, if your spouse can successfully prove that your assets were unfairly gained by you at their expense, they may be able to claim a part of your assets through unjust enrichment.
Does a common law spouse have claim to your house?
Not necessarily. If your name is the only name on the title of the house, you do not have the legal obligation to share its value with your common law spouse. However, if your spouse can show that they contributed to the house, or made significant sacrifices so that you could obtain the house (i.e. provided unpaid domestic labour and childcare so you could work and earn money to buy and maintain the home) they may have a claim to the house by way of unjust enrichment.
Can a common law spouse get child or spousal support in Ontario?
Your rights and obligations in terms of child support and child custody are the same for married and common law spouses in Ontario. Both the FLA and the Divorce Act impose on parents an obligation to support a child who is a minor, enrolled in a full-time program of education, or unable “by reason of illness, disability or other case to withdraw from the charge of his or her parents.”
Similarly, common law spouses have the same rights to spousal support as legally married spouses when the relationship ends. If your relationship meets the definition of common law, you may be entitled to spousal support or be obligated to pay your former partner spousal support.
Without the legal requirement for common law couples to divide property upon separation, things can get complicated very quickly. Many common law couples choose to enter into domestic contracts that set out their respective rights to property upon the breakdown of the relationship. These include cohabitation agreements, which are entered into during the course of the relationship in anticipation of a potential separation at some point. A separation agreement can be entered into upon the breakdown of the relationship, provided the parties can agree on their respective entitlements.
At Angrove Law, we recognize that property division in any form of a relationship can be complicated and stressful. We are dedicated to providing clear, empathetic legal support in assisting you navigate any stage of your common law relationship. Should you require assistance with your domestic contracts, do not hesitate to reach out to us.
Can You Kick Out a Common-Law Spouse in Ontario?
One of the first questions that comes up when a common-law relationship breaks down is: who has to leave? The answer depends almost entirely on whose name is on the title, the lease, or the mortgage. The matrimonial home protections that apply to married couples in Ontario do NOT automatically apply to common-law partners.
If the Home Is Owned in One Partner’s Name Only
The legal owner generally has the right to ask the other partner to leave. There is no automatic right of equal occupation for common-law spouses. The non-owning partner can refuse to leave only if they have a competing claim to the property (such as a constructive trust argument based on financial or non-financial contributions) or if a court has issued a restraining order in their favour.
Even if the legal right to ask someone to leave exists, you still need to follow the process. Self-help eviction (changing the locks, putting belongings on the lawn, calling the police to remove a partner who is not threatening anyone) usually backfires. The courts respond poorly to it, and police generally treat removal of a domestic partner as a civil matter rather than a criminal one. The cleanest path is a written notice with a reasonable departure date and, if needed, a court application for exclusive possession.
If the Home Is Jointly Owned
Both joint owners have an equal right to occupy the property. Neither can force the other to leave. The options are usually:
- One partner buys out the other and registers the property in their sole name
- The home is sold and proceeds are split according to ownership share or written agreement
- One partner moves out voluntarily, often with a side agreement about how shared expenses will be handled until sale or buyout
- A court application for partition and sale, where one joint owner asks the court to order the property sold
If You Are Renting
The lease determines who has rights. If both names are on the lease, both partners are tenants. Neither can evict the other; only the landlord can end the tenancy through the Landlord and Tenant Board process. If only one partner is on the lease, the other is technically an occupant rather than a tenant, and the lease-holder can ask them to leave (with reasonable notice).
When Safety Is a Concern
If there is violence or credible threats, the rules above do not apply. Either partner can apply for an emergency restraining order under the Family Law Act, which can include exclusive possession of the home regardless of who owns it. The Assaulted Women’s Helpline (1-866-863-0511) and the Victim Support Line (1-888-579-2888) can help you navigate next steps. Document any incidents in writing with dates and times, and contact a family lawyer as soon as possible.
