- Living together as a couple does not make you legally married in Ontario, and the property and matrimonial home rules cover spouses (people who are married, including in a voidable or void marriage) but not unmarried partners.
- Ontario has no single definition of a common-law spouse: the test changes depending on whether the issue is support, tax, immigration or benefits.
- A written, signed and witnessed cohabitation agreement lets unmarried partners make rules about property and support, but it cannot deal with parenting time or decision-making, and a court can set aside a support waiver in some circumstances.
Many people say they are "common law" without being sure what it means. Some assume it works like a marriage after a certain number of years. Others assume it gives them no rights at all. Neither is quite right, and the difference matters when a relationship ends, when someone dies or when you file taxes.
This article explains what the term means in Ontario, how it differs from marriage, and which rights it does and does not bring. The details depend on which law is being applied, so the answer for your situation may be different from a friend's.
What "common law" means in plain words
"Common law" is an everyday label for two people who live together as a couple without being married. Whether you count as common law depends on which law is being applied, because each law has its own test. The Family Law Act describes the underlying idea as cohabiting, which means living together in a conjugal relationship, whether or not the couple is married.
Being common law is therefore not the same as being married. You have not entered a marriage, so you do not automatically receive the legal package that comes with one. Instead, particular laws give unmarried partners particular rights or duties once certain tests are met.
How common law differs from marriage
The biggest differences show up in property, the home and inheritance. The table below compares the main areas.
| Issue | Married spouses | Unmarried partners |
|---|---|---|
| Property division on separation | Part I of the Family Law Act applies to spouses: two people who are married to each other or who entered a voidable or void marriage | Ontario does not divide property between common-law couples; each keeps what they bought |
| Matrimonial home | Protections apply to the family residence of spouses | The matrimonial home protections do not cover unmarried partners |
| Support | Spouses must support each other according to need, to the extent they are able | Covered if you meet the wider support definition, such as three years together |
| Estate with no will | A married spouse may take the whole estate or a preferential share, unless the spouses were separated at the time of death | A common-law spouse does not inherit under the Succession Law Reform Act |
Why there is more than one definition
Ontario and federal laws each define a common-law partner for their own purposes. You can be a common-law spouse under one law and not under another. Examples include:
- Family Law Act support: unmarried people who have cohabited continuously for at least three years, or who lived together in a relationship of some permanence and are parents of a child.
- Income Tax Act: a person who has cohabited in a conjugal relationship with you throughout the 12-month period ending at that time.
- Immigration rules: someone cohabiting in a conjugal relationship for at least one year.
- ODSP: among other routes, people who have lived in the same dwelling for at least three months with social and financial ties consistent with cohabitation.
Because of this, always ask which law you are dealing with before relying on a number you heard from someone else.
What common-law partners can still do to protect themselves
Not having a right to a share of property does not mean you have no options. A common-law partner who contributed to property the other person owns may have a right to part of it, although unless the owner agrees to pay the contribution back, the partner may have to go to court.
A better approach is to plan ahead. Two unmarried people who are cohabiting, or who intend to, may make a cohabitation agreement about their rights and obligations, including property and support. It is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance advises that each partner speak to a different lawyer and that you exchange financial information before signing. If you later marry each other, the agreement is deemed to be a marriage contract.
Even a good agreement has limits. A court can set aside a domestic contract if a party failed to disclose significant assets or debts, or did not understand its nature or consequences. A court may also set aside a support provision or a waiver of support and order support if it results in unconscionable circumstances, if the dependant qualifies for support out of public money, or if support under the contract is in default. A cohabitation agreement cannot deal with decision-making responsibility or parenting time for children.
What to do next
- Write down the date you started living together and any dates you lived apart.
- Collect documents showing who owns or pays for what, such as deeds, leases, bank records and receipts.
- Check whether you share a will, beneficiary designations or joint property, since a common-law spouse does not inherit if there is no will.
- Consider a cohabitation agreement, and a will, if you want protection the default rules do not give you.
- Speak to a lawyer if you are separating, buying a home together or sorting out an estate.
Frequently asked questions
Is there common-law marriage in Ontario?
No. Ontario does not treat living together as a marriage. The Family Law Act defines spouse for property and the matrimonial home as people who are married, or who entered a voidable or void marriage. Unmarried partners can still have rights, such as support, depending on the law.
Do common-law partners split property when they separate?
Generally no. Each partner keeps the property they bought, and neither has a right to share the other's increase in value. A partner who contributed to property the other owns may have a claim to part of it, which may require going to court.
Does a common-law partner inherit if there is no will?
No. A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. They may still be able to apply for dependant support from the estate if they meet that law's definition of spouse.
Does having a child together change anything?
It can. For support, unmarried partners can be spouses however long they lived together if they cohabited in a relationship of some permanence and are parents of a child. For tax, a cohabiting conjugal partner who is the parent of your child counts as a common-law partner even before 12 months.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
- Income Tax Act, s. 248(1) (Justice Laws) — Justice Laws (federal)
- CRA – Marital status — canada.ca
- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 1 — Justice Laws (federal)
- Ontario.ca – Administering estates — ontario.ca
- Succession Law Reform Act, R.S.O. 1990, c. S.26 (e-Laws) — Ontario e-Laws
- ODSP Income Support Policy Directive 2.3 – Spouse — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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