Many couples live together for years without getting legally married and describe themselves as being in a common law relationship. But the legal rights of common law partners are not always the same as those of married spouses.
The distinction matters because marriage can affect property division, the matrimonial home, estate rights, and other legal obligations in ways that do not automatically apply to unmarried couples.
There is also no single definition of “common law” that applies for every legal purpose in Canada. Federal tax rules, Ontario family law, pension rules, and other legislation can use different tests. As a result, understanding the specific rules of the province where you and your partner reside is important.
At Gelman & Associates, our Toronto marriage and common law lawyers help clients understand how their relationship status may affect their family-law rights and obligations.
Key Takeaways About Common Law And Marriage In Ontario
- There is no universal Canada-wide definition of common law for every legal purpose.
- For federal tax purposes, the Canada Revenue Agency generally considers partners common law after 12 continuous months of living together in a conjugal relationship, or earlier in certain situations involving a child.
- Ontario family law may use different definitions depending on the legal issue.
- Married spouses generally have statutory property equalization rights when they separate.
- Common law partners do not automatically divide property under Ontario’s equalization regime.
- Married spouses receive special rights relating to the matrimonial home that unmarried partners do not automatically receive.
- Common law partners may still have spousal support rights if they meet Ontario’s statutory definition.
- Child support and parenting rights do not depend on whether the parents were married.
- Cohabitation agreements can help unmarried partners clarify property and support expectations.
What Is Common Law In Canada?
“Common law” does not have one single meaning across all Canadian laws. Different statutes and government programs may define the term differently depending on the purpose of the law.
When it comes to family law, for federal tax purposes, the Canada Revenue Agency generally considers two people to be living common law where they live together in a conjugal relationship and at least one of the following applies:
- They have lived together continuously for at least 12 months
- They are the parents of a child by birth or adoption
- One partner has custody and control of the other’s child in circumstances recognized by the federal definition
That definition applies for federal tax purposes and should not automatically be assumed to govern every family-law question.
What Is Considered Common Law In Ontario?
Ontario family law can apply different definitions depending on the issue.
For example, the definition of a common law partnership used for spousal support under Ontario’s Family Law Act generally includes two people who:
- Have lived together continuously in a conjugal relationship for at least three years, or
- Have lived together in a relationship of some permanence and are the natural or adoptive parents of a child
That does not mean a couple suddenly acquires all of the rights of married spouses after three years.
The three-year threshold is important for certain support rights, but Ontario’s statutory property equalization regime is still generally reserved for legally married spouses.
This is why the question “when are we common law?” should always be followed by “for what legal purpose?”
Is There Common Law Marriage In Canada?
People often use the phrase “common law marriage”, but living together does not create a legal marriage. A common law relationship and a marriage are legally distinct.
Marriage requires a legally valid marriage ceremony and creates a legal status recognized under federal and provincial law.
A common law relationship can create certain legal rights and obligations without the partners ever becoming legally married.
The consequences can overlap in some areas, such as spousal support, child support, and parenting, but they are not identical.
Domestic Partnership Vs. Common Law: Are They The Same?
The phrase “domestic partnership” is common in some other jurisdictions, particularly outside Canada, but it is not the standard Ontario family-law term for an unmarried couple living together.
In Ontario, the more relevant concepts are:
- Common law partners
- Cohabiting spouses
- Married spouses
- Cohabitation agreements
- Marriage contracts
Someone searching for “domestic partnership vs common law” in Ontario is usually trying to understand whether living together without marriage creates the same rights as marriage.
Generally, the answer is no. Common law partners can have significant family-law rights, but they do not automatically receive all of the same rights as married spouses.
What Is The Difference Between Common Law And Marriage In Ontario?
The most important differences involve property, the matrimonial home, and certain estate rights.
Property Division for Common Law Couples
Married spouses in Ontario are generally subject to the statutory equalization of net family property system when the marriage ends.
Under this system, the increase in each spouse’s net family property during the marriage is calculated and compared.
Common law partners do not automatically use that equalization process. Ontario expressly states that common law couples are not legally required to divide property acquired while living together.
For a detailed explanation, read our guide to common law separation and property division in Ontario.
The Matrimonial Home for Common Law Partners
Ontario gives married spouses special statutory rights relating to the matrimonial home.
A matrimonial home can include property ordinarily occupied by married spouses as their family residence. Ontario’s Family Law Act gives both married spouses possessory rights in the matrimonial home while those rights apply.
Common law partners do not automatically receive those same statutory matrimonial-home protections.
For a detailed explanation of the rules applying to married spouses, visit our Toronto matrimonial home lawyers page.
Spousal Support After Common Law Relationships End
Common law partners may have spousal support rights in Ontario even though they do not receive automatic property equalization. This is one of the most important distinctions between property rights and support rights.
A common law partner may qualify as a spouse for support purposes where the statutory requirements are met.
Our Toronto spousal support lawyers can explain entitlement, amount, and duration if you and your partner were not married.
Child Support For Common Law Couples Who Share Children
A child’s entitlement to support does not depend on whether the parents were married.
Parents may have child support obligations following the breakdown of a marriage or a common law relationship.
Learn more from our Toronto child support lawyers.
Parenting Time And Decision-Making Responsibility
Parenting rights are also not determined simply by whether the parents were married.
Ontario law focuses on the child’s best interests when determining parenting time and decision-making responsibility.
Our Toronto child custody lawyers assist parents with parenting plans, decision-making responsibility and parenting-time disputes.
Do Common Law Couples Have The Same Property Rights As Married Couples?
Generally, no. This is one of the clearest legal differences between marriage and common law partnership.
Ontario’s government guidance states that common law couples are not automatically required to divide property acquired while living together. Property generally belongs to its legal owner, although a partner who contributed to property owned by the other person may have a potential claim.
Married spouses, by contrast, are generally subject to Ontario’s equalization system.
A common law partner may still have property-related claims involving:
- Joint ownership
- Unjust enrichment
- Constructive trust
- Resulting trust
- Agreements between the partners
Those claims are fact-specific and are not the same as statutory equalization.
Does Living Together For Three Years Make You Legally Married?
No. Living together for three years may satisfy an important Ontario threshold for spousal support, but it does not turn an unmarried couple into legally married spouses.
The relationship remains common law unless the parties legally marry.
This distinction matters because property rights can remain very different even where the couple has lived together for decades.
What Happens If Common Law Partners Separate?
A common law separation can involve many of the same practical issues as a divorce, including:
- Where each partner will live
- Parenting arrangements
- Child support
- Spousal support
- Joint debts
- Joint bank accounts
- Property ownership
- The family home
The legal treatment of those issues, however, may differ from a marriage.
Can A Common Law Partner Get Spousal Support?
Potentially, yes. Ontario’s Family Law Act includes certain unmarried partners within its definition of spouse for support purposes.
Entitlement is not automatic. Factors such as need, compensation, relationship roles, income and financial circumstances can all become relevant.
The fact that common law partners may claim support does not mean they automatically acquire married-spouse property rights.
Do Common Law Partners Have Rights To The Family Home?
Rights depend heavily on ownership and the circumstances.
- If both partners own the home, each has an ownership interest.
- If only one partner owns the home, the non-owner does not automatically acquire the statutory possession and property rights that a married spouse may receive in a matrimonial home.
A non-owner may nevertheless have a property claim in certain circumstances, such as where their contributions support an unjust enrichment or trust claim.
Can Common Law Couples Sign A Prenup?
Unmarried couples usually use a cohabitation agreement, rather than a marriage contract.
Ontario’s Family Law Act allows two people who are cohabiting or intend to cohabit and are not married to enter into a cohabitation agreement.
A cohabitation agreement can address property, support and other financial matters.
If the parties later marry each other, the agreement is generally deemed to become a marriage contract unless it provides otherwise.
Learn more from our Toronto cohabitation agreement lawyers.
What Happens If Common Law Partners Get Married?
Marriage can significantly change the couple’s legal position.
Once legally married, spouses may become subject to:
- Ontario’s property equalization system
- Matrimonial-home protections
- Marriage-specific estate rights
- Other statutory rights and obligations
A property that previously belonged solely to one common law partner may also receive different treatment after it becomes the spouses’ matrimonial home.
Couples moving from common law to marriage should consider whether their existing cohabitation agreement still reflects their intentions.
Are Common Law And Married Couples Treated The Same For Tax Purposes?
Not necessarily, and this is another reason terminology can be confusing.
The CRA uses its own definition of common law for federal tax and benefit purposes. As noted above, that generally includes partners who have lived together in a conjugal relationship for at least 12 continuous months, as well as certain partners who share a child.
A couple can therefore be considered common law for federal tax purposes before they meet Ontario’s three-year support threshold.
Different legal contexts can produce different answers.
Frequently Asked Questions About Common Law Relationships In Canada
What Is Considered Common Law In Canada?
There is no single definition that applies for every legal purpose. Federal tax law, provincial family law and other legislation can use different definitions.
For federal tax purposes, the CRA generally uses a 12-month continuous cohabitation test, subject to alternatives involving a child. Provincial family-law definitions may differ.
Is Common Law Marriage Legal In Canada?
Canada recognizes common law relationships for many legal purposes, but living together does not create a legal marriage. A common law relationship and a marriage are legally distinct.
What Is The Difference Between A Domestic Partnership And Common Law?
“Domestic partnership” is not the usual Ontario family-law term. In Ontario, unmarried couples who live together are generally described as common law or cohabiting partners. However, in other provinces or jurisdictions, domestic partnership may be used to refer to a common law relationship.
Do Common Law Couples Have The Same Rights As Married Couples?
No. Rights may overlap in areas such as support and parenting, but important differences remain, especially concerning property division and the matrimonial home.
How Long Do You Have To Live Together To Be Common Law In Ontario?
The answer depends on the legal issue. For spousal support under Ontario family law, a three-year period of continuous cohabitation is commonly relevant, or a shorter relationship of some permanence where the partners share a child. Other laws use different definitions.
Does Common Law Mean 50/50 Property Division?
No. Ontario common law partners do not automatically divide property under the same statutory equalization system that applies to married spouses.
Can Common Law Partners Have A Cohabitation Agreement?
Yes. A cohabitation agreement can help unmarried couples document expectations concerning property, debts, support and other financial issues.
Speak With A Toronto Common Law Lawyer Today About Your Rights
Whether you are married or living common law can significantly affect your property, housing, support and estate rights.
The answer to “what are my rights?” often depends not only on how long you have lived together, but also on the specific legal issue involved.
Gelman & Associates assists clients with:
- Common law separation
- Property disputes
- Spousal support
- Parenting arrangements
- Child support
- Cohabitation agreements
- Marriage contracts
- Separation agreements
To discuss your circumstances with a Toronto family lawyer, call 1-844-736-0200 or contact Gelman & Associates online.
