Common-Law Couples: Know Your Rights and Protections

Are you in a common-law relationship in Ontario? Wondering about your legal rights and protections? This comprehensive guide covers everything you need to know, from property division to succession rights, from the perspective of an estate planning lawyer. Get informed and protect your interests.

• What is a Common-Law Relationship?
• Property Division for Common-Law Couples
• Spousal Support for Common-Law Partners
• Succession Rights for Common-Law Spouses
• Cohabitation Agreements for Common-Law Couples
• Other Considerations for Common-Law Couples
• FAQs About Common-Law Rights in Ontario

What is a Common-Law Relationship?

Well, here's the thing - in Ontario, a common-law relationship is defined as a couple who have been living together in a conjugal (marriage-like) relationship for at least 3 continuous years. Or, if the couple has a child together, they are considered common-law partners regardless of how long they've been living together. This is an important distinction from a legal marriage, which has its own set of rights and obligations.

The key thing to understand is that common-law partners don't have the same automatic rights and protections as married couples under Ontario family law. That's why it's crucial for common-law couples to understand their rights and take proactive steps to protect their interests, especially when it comes to property, support, and succession planning.

Property Division for Common-Law Couples

One of the biggest areas of concern for common-law couples is property division. Unlike married couples, who have an equal right to share in the matrimonial home and other family property upon separation, common-law partners don't have an automatic right to an equal division of property. Instead, property is divided based on principles of trust and unjust enrichment.

This means that if one partner made direct financial contributions to the purchase or improvement of a property, they may have a claim to that property. Or if one partner's actions or contributions allowed the other partner to accumulate wealth, they may have a claim based on unjust enrichment. However, these claims can be complex and difficult to prove, which is why a cohabitation agreement is so important (more on that later).

The bottom line is that property division for common-law couples is much less straightforward than for married couples. It's crucial to consult with a lawyer to understand your rights and options.

Spousal Support for Common-Law Partners

Another key consideration for common-law couples is spousal support. Like property division, the rules around spousal support are different for common-law partners compared to married couples.

Common-law partners may be eligible for spousal support, but the test is more stringent. Whereas married spouses have a presumptive right to support, common-law partners must prove that the relationship created a "reasonable expectation of support" and that it would be "unconscionable" not to provide support.

This means that the court will look at factors like the length of the relationship, the couple's financial means and needs, and the roles and functions each partner played in the relationship. The bar is higher for common-law partners, which is why it's so important to have a cohabitation agreement that clearly spells out support obligations.

Succession Rights for Common-Law Spouses

When it comes to succession rights and estate planning, common-law partners again have fewer automatic protections than married spouses. Unless specific provisions are made in a will or other legal document, a common-law partner may not have the same rights as a legally married spouse when it comes to inheriting the deceased partner's estate.

For example, a common-law partner may not have the right to live in the family home after their partner passes away, or they may not be entitled to a share of the deceased's assets. This can leave the surviving partner in a very vulnerable position, especially if they were financially dependent on their partner.

To protect your succession rights, it's crucial to have a comprehensive estate plan in place, including a will, power of attorney, and potentially a domestic contract like a cohabitation agreement. This will ensure your wishes are clearly documented and your partner's rights are protected.

Cohabitation Agreements for Common-Law Couples

Given the complexities and potential vulnerabilities facing common-law couples, a cohabitation agreement is an absolutely essential document. A cohabitation agreement is a legal contract that spells out the rights and obligations of each partner, covering everything from property division to spousal support to succession planning.

This type of domestic contract can provide a lot of clarity and protection for common-law couples. It allows you to pre-determine how assets will be divided, what spousal support obligations will be, and how your estate will be handled - all while you're in a harmonious relationship, rather than trying to sort it out during a potentially acrimonious separation.

Consulting with a lawyer to draft a cohabitation agreement is highly recommended for any common-law couple. It may feel unromantic, but it's one of the best ways to safeguard your interests and avoid nasty surprises down the road.

Other Considerations for Common-Law Couples

Beyond the core issues of property, support, and succession, there are a few other important considerations for common-law couples in Ontario:

Domestic Contracts: In addition to a cohabitation agreement, common-law couples may also want to consider a separation agreement or other domestic contract to codify their rights and obligations.

Family Law Act: While common-law partners don't have the same automatic rights as married spouses under the Family Law Act, certain provisions may still apply, such as the ability to make a claim for unjust enrichment.

Legal Separation: Even though common-law partners aren't "divorced" in the same way as married couples, a legal separation may still be advisable to formalize the end of the relationship and each partner's rights and obligations.

The key takeaway is that the legal landscape for common-law couples is complex, and it's essential to proactively plan and protect your interests, rather than trying to sort things out in the midst of a separation or crisis. Consulting with an experienced estate planning lawyer is highly recommended.

FAQs About Common-Law Rights in Ontario

Do common-law partners have the same rights as married couples in Ontario?

No, common-law partners do not have the same automatic rights and protections as married couples under Ontario family law. Common-law partners must take additional steps to protect their interests, such as through a cohabitation agreement.

How long do you have to live together to be considered common-law in Ontario?

In Ontario, a common-law relationship is defined as a couple living together in a conjugal (marriage-like) relationship for at least 3 continuous years. If the couple has a child together, they are considered common-law regardless of how long they've been living together.

What happens to property when common-law partners separate in Ontario?

Property division for common-law couples is based on principles of trust and unjust enrichment, rather than the automatic equal division that applies to married couples. This can make property division much more complex and uncertain for common-law partners.

Are common-law partners entitled to spousal support in Ontario?

Common-law partners may be eligible for spousal support, but the test is more stringent than for married spouses. Common-law partners must prove a "reasonable expectation of support" and that it would be "unconscionable" not to provide support.

Do common-law partners have succession rights in Ontario?

Unless specific provisions are made in a will or other legal document, a common-law partner may not have the same succession rights as a legally married spouse when it comes to inheriting the deceased partner's estate. This is why estate planning is so crucial for common-law couples.