According to the latest census, the number of common law relationships in Canada continues to surge.
As this trend shows little sign of slowing down, it is important for common law couples to understand their rights, especially if the relationship should end, and seek the advice of a Toronto divorce lawyer.
Those living in common law relationships have significantly different rights and obligations than couples who are married.
In Ontario, individuals in a common law relationship may be entitled to Spousal Support if they have lived together for three years, or have a child together, and are engaged in a relationship of some permanence.
One key difference between married couples and common law couples is the right to property when the relationship ends. People involved in common law relationships do not have the same rights as married couples to a share in the value of property, including the home they live in, unless the property is in both their names.
In most circumstances, each person in a common law relationship keeps what belongs to them upon separation and is responsible for their own debts.
At the dissolution of a marriage, a married couple is entitled to divide any kind of property that was acquired by either spouse during the marriage (and is still in their possession at the date of separation), equally. Also, any increase in the value of property owned by one spouse at the date of marriage must be shared. The payment that one spouse would owe the other to achieve this sharing is called an equalization of net family property.
If you are in a common law relationship, however you are not entitled to an equalization payment, but may be entitled to a payment from your spouse to pay you back for a direct or indirect contributions to property that the other owns. This is referred to as unjust enrichment.
Matrimonial Home
With regard to the matrimonial home, Ontario gives this/these dwelling(s) a special status for married couples. Under the Family Law Act, spouses are entitled to a credit for any asset they brought into their marriage, but if the matrimonial home is brought into the marriage and still qualifies as a matrimonial home at the date of separation, this credit is not received.
For common law couples, no special treatment is afforded to the residence in which they reside, nor any other property.
Unless a common law spouse owns the home in which they are living, they have no rights to any portion of its value upon separation unless they are able to advance a successful claim for unjust enrichment. For all intents and purposes, the property-less spouse is just like a guest in the home and can even be evicted, if warranted.
Child Support and Child Custody
Whether married or common law, couples’ obligations and entitlements with respect to Child Support and Child Custody are the same in Ontario.
This is because the law focuses on the children and their rights.
Children are not concerned with, nor should it matter to them, whether or not their parents had a formal marriage ceremony. Children have the right to financial support from both parents, whether married or not. Period.
Pension
For married couples, the Ontario Family Law Act requires that the value of a pension earned during the time you were married be included in the calculation of net family property. Although couples are required to consider the value of pensions as part of its value in the calculation for dividing all family property, there is no requirement to divide the pension.
For common law couples, as stated previously, however no such requirement exists under the Ontario Family Law Act to divide net family property (including the value of any pension assets). Nonetheless, these couples may still negotiate and agree to do so.
Common law separation and divorce is not always as clear cut as people believe. It’s important that you get all the facts before you make any key decisions.
