June 26, 2019
By: Kaitlyn Perrotta, Lawyer and Millennial Translator
Common law relationships are increasingly becoming the new normal. According to a 2017 General Social Survey, more than 70% of Canadians between the ages of 25 and 64 were either married or in common law relationships. 15% of these Canadians are in common law relationships and, moreover, 39% of married 25 to 64 year olds lived in common law relationships with their current spouse before walking down the aisle.¹ Yet, basic information about the law of common-law partnership is not well circulated amongst millennials.
As a young family law lawyer, I am frequently asked by my friends, “how long do I have to live with my boyfriend/girlfriend in order for us to be in a common law relationship?” In Ontario, provincial legislation states that two people who are not married and have continuously lived together for three years in a conjugal relationship are considered to be common-law spouses. You will also be considered common law spouses without ever having lived together if you and your partner have a child (either naturally or adopted), so long as your relationship is of some permanence.² What does this mean for you? The most impactful consequence is that should you and your common-law partner break up, either partner is entitled to make a claim for spousal support under the Family Law Act.³ Another important issue is that common law couples are not protected by the same statutory rights to property as married couples. Married couples have rights to the matrimonial home and to equalize property accumulated during the marriage, but common law spouses do not have these same rights under statutory law. Common law couples may be able to make a trust claim against the property of their partner. These issues become gradually more important the longer the duration of your common law relationship.
Whether you decided to live with your partner in order to afford the shockingly high Toronto housing expenses, you want to take the next step of living together before getting married or the entire “I do” debacle seems like an antiquated notion, it is important to understand the basic legal implications of common law relationships. First and foremost, you should discuss these issues with your partner. Establish whether you both understand the entitlements each of you will or will not receive under statutory law and consider whether you might want to change those entitlements through a domestic contract. Remember, these conversations are smart, not sexy. Continue to educate yourself through online reading materials, or consider speaking with a lawyer about your rights and obligations as a common-law spouse. Wood Gold LLP which is based out of Brampton and Mississauga provides free 30-minute consultations where you can speak with a legal professional about protecting your rights.
² These definitions are for the purposes of family law. There is a different definition of common law spouse under the Income Tax Act for tax purposes.
³ R.S.O. 1990, c. F.3