When a common-law relationship ends, it can be difficult to understand what happens to the property you accumulated while living together. This can be especially confusing because many people assume that long-term common-law partners have the same property rights as legally married spouses.
How is property divided when a common-law relationship ends in Ontario? Unlike married spouses, common-law partners do not automatically divide or equalize property acquired during the relationship. As a general starting point, each partner keeps the property they own, while jointly owned property remains subject to both partners’ ownership interests.
However, that does not mean a common-law partner can never make a claim involving property owned by the other partner. Depending on the circumstances, claims based on principles such as unjust enrichment, constructive trust or resulting trust may be available.
A Toronto marriage and common-law lawyer can help you understand which rights may apply when your relationship ends.
Key Takeaways About Common Law Property Division
- Common law spouses do not automatically divide property 50/50 (equalize their net family property) after separation.
- As a general rule, each partner keeps property they own in their own name.
- Property owned jointly by both partners generally remains jointly owned until it is sold, transferred or otherwise dealt with.
- A common-law partner who contributed money, work or other benefits toward property owned by the other partner may potentially have an unjust enrichment or trust claim.
- Common-law partners do not receive the same automatic matrimonial-home protections that married spouses receive.
- Workplace pensions are not automatically divided simply because a common-law relationship ends.
- Eligible former common-law partners may request a CPP credit split after separation.
- A cohabitation agreement can specify how property and support issues will be handled if the relationship ends.
This article provides general information about Ontario family law and is not legal advice. Property disputes between common-law partners can be highly fact-specific.
What is a Common Law Spouse Entitled to in Ontario?
Unlike married spouses, common-law partners are not automatically entitled to an equalization of net family property when their relationship ends. However, a common-law spouse in Ontario may have rights involving spousal support, jointly owned property, unjust enrichment claims, child support, and parenting arrangements
Property rights depend in part on the type of relationship involved. Our broader guide explains what common law in Canada is and how common law status differs from marriage.
For married spouses, Ontario’s Family Law Act contains a statutory equalization regime designed to share the growth in net family property accumulated during the marriage.
That regime does not generally apply to unmarried common-law partners.
Instead, ownership is usually the starting point.
Is Common Law Property Split 50/50 in Ontario?
If you own a vehicle, investment account or other property in your name, you will generally continue to own it after separation. If your former partner owns an asset in their name, they generally continue to own that asset.
If an asset is jointly owned, both partners may have an ownership interest in it.
This is why a common-law separation can produce a very different property outcome from a divorce, even where the couple lived together for many years.
Can a Common-Law Partner Claim Property They Do Not Own?
Potentially. Although there is no automatic equalization process, a common-law partner may sometimes make a property claim based on equitable legal principles.
One of the most important is unjust enrichment.
An unjust enrichment claim may arise where:
- one partner received a benefit;
- the other partner suffered a corresponding deprivation; and
- there is no legal reason explaining why the benefit should be retained.
For example, one partner may have contributed significant unpaid labour to a business owned by the other, paid toward renovations on a home they did not own, or taken on substantial household responsibilities that allowed the other partner to accumulate wealth.
Depending on the facts, a successful claim may result in monetary compensation or, in some circumstances, an interest in particular property.
For more information, see Gelman & Associates’ discussion of unjust enrichment and constructive trusts.
What Is a Constructive Trust in a Common-Law Separation?
A constructive trust is one possible remedy that may arise from an unjust enrichment claim.
Rather than simply ordering one partner to pay money to the other, a court may in appropriate circumstances recognize an interest in specific property where there is a sufficient connection between the claimant’s contributions and that property.
These claims are not automatic merely because a couple lived together for a long time.
Evidence can be important. Financial records, mortgage payments, renovation expenses, business records and evidence about unpaid contributions to the household or family enterprise may all become relevant depending on the claim.
Because trust claims can be considerably more complex than Ontario’s statutory equalization process for married spouses, obtaining legal advice early can be important.
What Happens to a House When Common-Law Partners Separate?
The first question is usually who owns the property.
If both partners are on title, they generally both have an ownership interest. They may need to agree on whether one partner will buy out the other, whether the home will be sold, or how their respective interests will otherwise be addressed.
If only one common-law partner owns the home, the non-owner does not automatically acquire half of it simply because they lived there.
This differs significantly from Ontario’s rules concerning the matrimonial home for legally married spouses.
However, a non-owner common-law partner may potentially make a trust or unjust enrichment claim if their contributions support one. CLEO explains that a common-law partner who contributed financially or in other ways to their partner’s property may potentially claim a share based on unjust enrichment.
For more information, see our discussion of common-law cohabitation and property rights.
Does Living Together for Three Years Mean You Get Half the Property?
No. This is a common source of confusion.
Ontario’s Family Law Act uses particular definitions of “spouse” for purposes such as spousal support, including certain people who have lived together continuously for at least three years or who have a relationship of some permanence and are parents of a child.
That does not create the same automatic property equalization rights that legally married spouses have.
In other words, becoming eligible to claim spousal support as a common-law spouse does not mean you suddenly become entitled to half of your partner’s property.
Support and property division are different legal issues.
What Happens to Pensions After a Common-Law Separation?
A common-law partner is not automatically entitled to half of the other partner’s workplace pension simply because the relationship ends.
This differs from property equalization between legally married spouses.
The treatment of a pension can depend on the pension plan, ownership, any agreement between the partners and whether a separate legal claim exists.
Common-law partners should therefore not assume that the rules discussed in relation to pensions and divorce apply to them in exactly the same way.
What Happens to CPP Credits?
The Canada Pension Plan operates differently from a private workplace pension.
When a qualifying common-law relationship ends, CPP pension credits accumulated while the partners lived together may be divided through a process called credit splitting.
Service Canada states that former common-law partners may qualify if they lived together for at least 12 consecutive months and have been living apart for at least 12 consecutive months. For a common-law union, an application generally must be made within 48 months after the partners began living apart, unless the former partner is still alive and agrees in writing to waive that deadline.
Either former partner can request the credit split.
A CPP credit split permanently changes the partners’ contribution records and may increase or decrease future CPP benefits. It is not a cash payment representing half of the other partner’s pension.
Does Infidelity Affect Common-Law Property Division?
Generally, infidelity does not determine who owns property after a common-law relationship ends.
The fact that one partner had an affair does not, by itself, create a right to half of that partner’s property or remove their ownership rights.
Property claims are generally based on ownership, contributions, agreements and applicable equitable principles rather than on assigning fault for the breakdown of the relationship.
Similarly, allegations of misconduct do not automatically determine spousal support rights.
Can Financial Abuse Affect a Common-Law Property Claim?
Financial abuse can be highly relevant to the circumstances surrounding a separation, but it should not be treated as an automatic basis for receiving a share of property owned by the other partner.
A property claim still needs to be supported by an applicable legal basis, such as ownership, unjust enrichment or a trust claim.
Evidence of financial control or abuse may nevertheless form part of the broader factual background of a dispute. Anyone experiencing financial abuse may also need advice about support, access to financial information, safety and other family law remedies.
The Department of Justice Canada provides information about financial abuse and family violence, and Gelman & Associates also discusses financial abuse during separation and divorce.
How Can a Cohabitation Agreement Protect Property?
Common-law partners can create a cohabitation agreement that sets out their financial rights and obligations.
Section 53 of Ontario’s Family Law Act specifically allows unmarried partners who are cohabiting or intend to cohabit to make agreements dealing with matters including ownership or division of property and support obligations.
A cohabitation agreement can address questions such as:
- who owns a home or other significant property;
- whether one partner will contribute toward the other’s property;
- how jointly purchased assets will be divided;
- responsibility for particular debts;
- what happens to property if the partners separate; and
- possible spousal support obligations.
One particularly useful feature under Ontario law is that if the partners later marry each other, their cohabitation agreement is generally deemed to become a marriage contract.
Having an agreement in place can provide greater certainty and potentially reduce future disputes about what the partners intended.
Frequently Asked Questions About Common-Law Property Division in Ontario
Is Common-Law the Same as Being Married for Property Division?
No. Common-law and married spouses have substantially different property rights in Ontario. Married spouses generally have statutory equalization rights under the Family Law Act. Common-law partners generally do not.
How Long Do You Have to Live Together Before You Are Entitled to Half of Everything?
There is no period of cohabitation after which an unmarried partner automatically becomes entitled to half of the other partner’s property in Ontario.
The often-mentioned three-year period relates to the definition of spouse for certain purposes, particularly spousal support. It does not create automatic equalization rights.
If My Name Is Not on the House, Am I Entitled to Anything?
Possibly, but not automatically.
If your partner owns the house, they generally remain the owner. However, you may potentially have a claim based on unjust enrichment or trust principles if you made significant contributions toward the property or the accumulation of wealth during the relationship.
Whether such a claim will succeed depends on the evidence and circumstances.
What Happens to Jointly Owned Property After a Common-Law Breakup?
Property that both partners legally own does not automatically become the sole property of either person when the relationship ends.
The partners may agree to sell the property, have one person purchase the other’s interest, or otherwise resolve their respective ownership rights.
Can My Common-Law Partner Take Half of My Savings?
Not simply because you were common-law partners.
Savings held solely in your name generally remain your property unless there is some other legal basis for a claim. Joint accounts and claims involving contributions or unjust enrichment can require a separate analysis.
Can a Common-Law Partner Claim Part of a Business?
Potentially. If one partner owns a business, the other does not automatically acquire half of it after separation. However, a claim might arise where the non-owner made uncompensated financial or labour contributions that enriched the owner or increased the value of the business.
Are Common-Law Partners Entitled to Spousal Support?
Potentially, yes.
Property division and spousal support are separate issues. A person who does not have an automatic right to their partner’s property may nevertheless qualify as a spouse for support purposes under Ontario’s Family Law Act.
For more information, see our guide to spousal support in Ontario.
Speak With a Toronto Common-Law Property Lawyer
Ending a common-law relationship can create significant financial uncertainty, particularly when the partners have shared a home, combined finances, contributed to one another’s property or built a business or other assets together.
Unlike married spouses, common-law partners in Ontario do not have an automatic right to equalize the property accumulated during their relationship. However, ownership rights, jointly held assets, unjust enrichment claims, trust claims, spousal support and existing cohabitation agreements can all affect the outcome.
If your common-law relationship has ended and you have questions about a home, investments, a business, pension interests or other property, contact Gelman & Associates or call 1-844-736-0200 to book a consultation with a Toronto common-law lawyer.
Disclaimer: This article provides general information about common-law relationships and property division in Ontario. It is not intended to provide legal advice. Property rights depend on ownership, contributions, agreements and the particular circumstances of each relationship. Consult a family law lawyer for advice about your situation.
