Part 2 of my “Avoiding Surprises” series deals with an aspect of family law which is often a source of confusion and surprise for common law spouses: the mistaken belief that common law spouses, once they reach the “common law” threshold of time that they have lived together acquire all the same property rights as married spouses in the event of separation. Not true.
There is reason for confusion here because the laws on this point vary from province to province. However, in Ontario, the law is clear. Common law spouses have none of the property rights on separation that married spouses have. The only right that they acquire upon becoming common law, which in Ontario is after having lived together for 3 years as a couple or after having lived together “in a relationship of some permanence” if they have a child, is the right to bring a claim for spousal support against the other common law spouse in the event of subsequent separation. Don’t be surprised to learn of this on your separation if you are a common law spouse.
One qualifying point to note is that a common law spouse can acquire an interest or entitlement to compensation out of property of the other common law spouse in the event of separation, under something called a constructive trust. However, these types of claims are exceptional, usually require at least a somewhat long period of cohabitation, require a direct or indirect contribution to the property of the other spouse, and are generally complex to prove.
Once again, a Cohabitation Agreement (the equivalent of a Marriage Contract for common law spouses) can, if the common law spouses wish, provide and ensure that they do have the same property rights as married spouses on separation. This can be all of the same rights or just some of the same rights, whatever is the preference of the common law spouses.
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