4 Myths about Common-Law Relationships

Common-law relationships typically refer to couples that live together in an arrangement akin to marriage, but without an actual ceremony or legal documents.

However, the notion of living “common law” is a complicated one, and its meaning varies greatly across Canada.

Here’s a look at some of the biggest misconceptions about common-law partnerships.

1. Common-law unions are the same across the country.

Legally, common-law relationships fall under provincial jurisdiction, and so what constitutes such a relationship and how it is viewed legally differs greatly from province to province.

In order for a couple to have common-law standing in Ontario and Manitoba, they must be living together in a conjugal relationship for three years or more, or one year with a child. 

Ontario Justice Harvey Brownstone said there is no registration in his home province. In fact, as he points out, in Ontario, “common law” is more of a vernacular term.

“There is no such thing as ‘common law’ in Ontario law — that term doesn’t exist,” he said.

Quebec is the only province that does not recognize common-law relationships. 

2. In the event of a break-up, assets are divvied up.

Living together in a relationship similar to marriage may make you “common law” in most provinces, but it does nothing with regards to the division of property acquired during the relationship unless a cohabitation agreement or some other form of legal agreement was made between the couple.

In Ontario, “There’s no such thing as matrimonial property in these relationships,” said Justice Brownstone. “We use the law of constructed trust to protect people’s property rights, so if you’ve been living common law and you’ve been contributing to a home that the other party owns – either because you paid for renovations or because you were the one maintaining it – you can make a claim for property.”

Brownstone added that this is not in any way based on the same kind of principles as being married. Rather, he said, “It’s based on the law of resulting trust. We use trust law to protect common law property rights.”

3. Unless you were married, you are not entitled to spousal support in the event of a break-up.

It’s unlikely that a common-law couple that decides to split will deal with spousal support, but it is possible, depending upon other factors.

Much like in marriage, spousal support is not automatic, but is given only when one party is seen as entitled to it.

According to Justice Brownstone, spousal support for Ontario common-law couples is possible if there were “economic consequences” to the break-up. If one person in the relationship supported the other person regularly – or, for example, one person had to give up their career in order to care for a child — then they could be entitled to spousal support.

“If you live together three years and don’t have kids, you are treated as a spouse for support purposes,” said Brownstone, but stressed that “spousal support is not that common.”

4. Children do not change or affect the common-law standing.

The presence of children can significantly affect the way a common-law relationship is viewed in the eyes of the law. When a cohabiting couple has a child, they are often viewed as common law years before a childless couple would be.

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