Many couples in Ontario choose to live together without getting married, believing that their common law relationship provides them with the same legal rights as married couples. However, Ontario law treats common law partners differently than legally married spouses, especially when it comes to property division, inheritance rights, and financial support upon separation.
Understanding the legal rights and responsibilities of common law partners is crucial for ensuring financial security and legal protection. Whether you are entering a common law in an Ontario relationship, separating from a long-term partner, or navigating estate planning, knowing your rights can help you make informed decisions.
What Is Common Law in Ontario?
A common law relationship in Ontario refers to an unmarried couple who has been living together in a marriage-like relationship for a certain period of time. While there is no formal registration for common law relationships, they are legally recognized in certain areas of family law, such as spousal support and parental responsibilities.
In Ontario, you are considered common law if:
- You have lived together in a conjugal relationship for at least three years; OR
- You have a child together and have been in a relationship of permanence (regardless of how long you have lived together).
Although common law couples may qualify for some legal rights, they do not have the same automatic protections as married spouses, particularly regarding property division and inheritance.
Legal Rights of Common Law Partners in Ontario
While common law relationships provide certain legal protections, they differ significantly from marriage when it comes to property ownership, estate rights, and separation laws.
Property Division for Common Law Ontario Couples
Unlike married spouses, common law partners are not entitled to equal property division upon separation. Instead, property rights are based on ownership. If one partner owns a home or assets solely in their name, the other partner has no automatic legal claim to those assets, regardless of how long they lived together.
- Property remains with the legal owner – Assets remain in the name of the person who purchased them unless the other partner can prove they contributed financially or in other meaningful ways.
- No automatic right to half of the family home – Unlike married spouses, common law partners do not have equal rights to the matrimonial home upon separation. If the home is owned by one partner, the other may be required to leave unless they can prove a financial interest.
- Constructive trust and unjust enrichment claims – A partner who contributed to a property financially or through unpaid labour (e.g., home renovations, mortgage payments) may make a constructive trust or unjust enrichment claim to seek compensation.
Given these differences, cohabitation agreements are strongly recommended for common law couples to protect their financial interests.
Spousal Support in Common Law Relationships
Under Ontario law, common law partners may be entitled to spousal support if they have lived together for at least three years or have a child together and are in a relationship of permanence. The right to spousal support depends on factors such as:
- The length of the relationship
- The financial dependence of one partner on the other
- Contributions made during the relationship (e.g., caregiving, household support)
- Income disparity between partners
Unlike property division, spousal support rights mirror those of married couples, ensuring financial protection for a lower-earning partner after separation.
Parental Rights and Child Custody
Common law parents in Ontario have the same parental rights and responsibilities as married couples. This includes:
- Decision-making responsibility (custody) – Both parents have equal rights to make major decisions about the child’s upbringing.
- Parenting time (access/visitation) – Courts prioritize the best interests of the child when determining parenting arrangements.
- Child support obligations – The parent with a higher income or less parenting time may be required to pay child support, following Ontario’s Child Support Guidelines.
Even if a child was born outside of marriage, both parents have equal obligations under Ontario family law.
How to Protect Your Legal Rights as a Common Law Partner
A cohabitation agreement is a legally binding contract that outlines financial arrangements, property division, and spousal support terms in case of separation. This agreement can:
- Clarify property ownership and financial contributions
- Protect one partner from financial loss
- Define spousal support obligations (if any)
- Reduce legal disputes in the event of a breakup
Having a cohabitation agreement can prevent misunderstandings and protect both partners from legal and financial uncertainty.
Estate Planning for Common Law Partners
Common law spouses do not automatically inherit their partner’s estate if they die without a will. To ensure financial security, common law partners should:
- Draft a will specifying their partner as a beneficiary
- Update beneficiary designations on pensions, life insurance, and RRSPs
- Consider a power of attorney for health and financial decisions
Without proper estate planning, a common law partner may receive nothing upon their spouse’s death, as Ontario law prioritizes blood relatives over unmarried partners.
Seek Legal Advice Before Separation
If a common law relationship ends, separation laws differ from divorce laws. Seeking legal advice ensures that both partners understand their financial and parental rights. A family lawyer can assist with:
- Spousal support claims
- Child custody arrangements
- Unjust enrichment claims for property
- Negotiating fair financial settlements
Since Ontario law does not automatically divide assets for common law couples, legal assistance can help ensure a fair resolution.
What Happens If a Common Law Partner Dies Without a Will?
Unlike married spouses, common law partners do not have automatic inheritance rights if their partner dies without a valid will. Under Ontario’s Succession Law Reform Act, assets are distributed to biological family members, meaning that a surviving common law spouse may receive nothing.
To protect a common law partner’s financial future, estate planning should include:
- A legally valid will that names the common law partner as a beneficiary
- Joint ownership of major assets, such as property and bank accounts
- Life insurance policies or trusts providing financial security for the surviving partner
Failing to plan ahead can leave surviving common law spouses without legal recourse, forcing them to file costly estate claims to receive financial support.
Can Common Law Partners File for Divorce?
Since common law partners are not legally married, they do not need to file for divorce in Ontario. However, they must still legally separate and resolve financial and parenting matters. Unlike married spouses, they cannot apply for equalization of net family property, but they may seek:
- Spousal support if eligible
- Parenting agreements for child custody and support
- Unjust enrichment claims to seek compensation for financial contributions
Common law partners do not need a court order to separate, but legal agreements can help protect both parties from disputes.
Do You Need Legal Assistance With Common Law in Ontario?
While common law partners enjoy some legal protections, they do not have the same rights as married couples, particularly in property division and estate planning. It is essential for common law partners to understand their legal rights, draft cohabitation agreements, and plan for financial security.
If you are in a common law relationship in Ontario and need assistance with property division, spousal support, parenting rights, or estate planning, consulting an experienced family lawyer is highly recommended. Legal guidance can help you protect your assets, clarify financial responsibilities, and prepare for the future.
For expert legal advice on common law rights in Ontario, contact Nussbaum Law today. Our family law team is here to help you navigate the legal complexities of common law relationships and separations.
