It can be hard to tell if you are in a common-law relationship or not. It is important to establish the legal status of your relationship before it progresses any further, as this will determine who has rights and responsibilities over each other and what happens when one person dies. There are many factors that determine whether two people are in a common-law marriage, such as how long they have been together, where they live, and their intentions for the future. This article discusses Common Law Relationships in Ontario and some of these factors to help you answer the question: Am I in a Common Law Relationship?
A common-law relationship is where two people, who are not married, live together in a marriage-like relationship. This means that they not only share a home, but they refer to themselves in public as spouses or partners and share things like bills and other finances and may or may not have children together. “Living common-law” means you are living with a person who is not your spouse, but with whom you have had a conjugal relationship for at least 12 continuous months.
It is important to note that 12 continuous months includes any period you were separated for less than 90 days due to a breakdown of your relationship.
How Does “Common Law” Work?
If two people have been living together for some time, then sorting out who bought what or who brought what into the home can be complicated; but the general rule of thumb is:
- Items purchased during the relationship belong to the person who paid for them.
- Items purchased jointly will usually be divided.
Is Common Law The Same Thing As Being Married?
No, common-law couples do not have all of the same rights and obligations as married couples under the law relating to property, debts and pensions. Ontario’s Family Law Act, the Act that governs the division of property, applies to legally married couples only. However, their rights and obligations around parenting and supporting children are similar to those of married couples. This is because Part 3 of the Family Law Act, Support Obligations, applies to people who are not married but have cohabitated continuously for a period of three years or more.
If you are entering a common-law relationship and want some protection of your rights, you do have an option. Just the same as marriage contract that couples sign before they get legally married to protect their rights if they split up, those in a common-law relationship can sign a cohabitation agreement. This contract can set out terms if the relationship ends such as:
- how much spousal or child support you will pay,
- how you will divide your property, and
- who will move out of the home.
However, it is important to note that this contract cannot say who will have decision-making responsibility or parenting time with respect to your children.
How Does A Common-Law Relationship End?
The relationship ends when you stop living together. You do not have to go through a divorce to end a common-law relationship. Although the relationship ends, some rights and responsibilities may continue. At the end of the relationship, you and your common-law partner may be able to agree on parenting arrangements for the children, how the property will be divided and how you will deal with debts. You may already have set out the terms of the separation in a cohabitation agreement. If you do not have a cohabitation agreement and you cannot agree on the terms of the separation, you can go to court and have a judge decide.
What Happens to Property and Assets When Separating from a Common-Law Relationship?
There is no formal separation process that common-law relationships have to go through in order to separate. However, if you have signed a cohabitation agreement then you must follow that contract.
When a couple is married and they divide their property when they separate, there is a general rule of equal sharing of the property they used as a married couple. This means that when they separate or divorce, the spouses will split things 50/50 – like their property, pensions, assets, and debts.
On the other hand, if you are separating from a common-law relationship, your property and assets are split differently.
- The 50/50 rule does not apply when separating from a common-law relationship.
- Common-law couples are not legally required to split property that they acquired while they lived together and they do not have an equal right to possess the family (or matrimonial) home. This is because a common-law partnership does not give couples any legal protection unless there was a cohabitation agreement.
- Furniture, household items and other property purchased during the period of cohabitation belong to the person who bought them.
- Common-law couples do not have the right to split an increase in the value of the property they brought with them to the relationship.
- However, if you contributed to the property that your partner owns you may have a right to a part of it – if you cannot agree to have your partner pay you back for your contribution you may have to go to court.
- If your common-law partner, dies then you have no right to inherit anything unless the partner that has passed away has stated it in their Will.
How Is Debt Divided?
The same rules hold true for debt: each partner is responsible for their own debts. If both partners’ names are on a mortgage, loan, or line of credit, the bank can pursue either or both spouses.
It is important to know whether you are in a common-law relationship or not, so you know your rights and obligations. You may be entitled to certain benefits that married couples enjoy; however, there are also major differences when separating from a common-law relationship regarding assets and property. Hopefully, this blog post has helped point out the differences between a marriage and a common-law relationship and has helped explain your legal rights when in a common-law relationship.
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