Common Law

Marriage

Common law couples do not share the same rights and responsibilities available to married couples upon separation.

The Family Law Act allows for the “equalization” of net family properties. The value of the spouses’ assets accumulated during marriage will be divided equally upon divorce, subject to specific examples. The purpose of this is to ensure that spouses leave the marriage on an equal footing.

The matrimonial home is given special treatment in family law. The Family Law Act defines it as a home that is ordinarily occupied by the spouses as their family residence at the time of separation.

Upon separation, neither spouse can sell or otherwise encumber the home, except by court order, or with the consent of the other spouse. There is an important distinction between possession and ownership of the matrimonial home. Even if one spouse is the sole title holder of the matrimonial home, the other spouse still has the right to possession same. Thus, the non-owner spouse still enjoys the right to remain in the home after separation.

Common Law

Ontario’s Family Law Act defines spouses as such:
– Two persons who are not married to each other, but who have lived together for at least three years; or
– Two persons who are in a relationship of some permanence and the parents of a child.

Common law spouses do not share property the same way married couples do. Firstly, there is no legal characterization of a “matrimonial home” for common law couples. A spouse who is not registered on title will neither enjoy the automatic right to share in the equity of the home, nor the right to possession of the home.

Secondly, common law spouses are not entitled to the “equalization” of property as mentioned above. Common law spouses have no automatic right to share in the value of the other spouse’s property when the relationship ends. Under some circumstances, common law spouses contribute both emotionally and financially to the other spouse’s property such that the benefiting spouse would unjustly walk away with a significant advantage. For example, while one spouse is the title holder of the home, the other spouse may have completed significant renovations, paid for utilities, and so on. In these cases, spouses might have recourse to “equitable relief” for compensation. However, these claims are difficult to make, and they do not guarantee separating spouses half the value of the
property, as is the case for married couples.