Blog

Banner icon
Slideshow image

Blog

Banner icon

Avoiding Surprises – Tips from a Family Law Lawyer – Part 2

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.

Print

 

The materials on the Maclaren Corlett LLP web site (the “Site”) have been developed as an electronic resource respecting our organization.

Any information sent to Maclaren Corlett LLP through this Site is not a confidential lawyer-client communication. No lawyer-client relationship is created by such correspondence or by you accessing the materials on this Site.

Any information sent or received over the Internet is generally not secure. Maclaren Corlett LLP cannot guarantee the security of any communication to or from the Site, nor does it assume any responsibility or risk for your use of the Internet.

The Site and Content is provided on an “as is” and “as available” basis, without any warranty or condition of any kind, either express or implied. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE USING THE SITE AND THE CONTENT, IF APPLICABLE, ENTIRELY AT YOUR OWN RISK AND LIABILITY.

By accessing or using the Site, you agree that all matters relating to your access or use of the Site and Content or to these Terms shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein excluding any conflict of laws principles.

All material on this site is copyright by Maclaren Corlett LLP and may not be reproduced in any form for commercial purposes without its express written consent.

Print

Please contact us for a copy of our Privacy policy.