Common-Law Couples in Ontario: Property and Separation Agreements

If you lived with a partner without marrying, you may have heard that you split everything 50/50 after a certain number of years. In Ontario, that is not how property works for unmarried couples. The rules that divide property between married spouses do not carry over to common-law relationships.

That does not leave you without options. A written agreement can spell out who keeps the house, the savings, the car and the debts. This article explains the starting point, what an agreement can do, and how to make one more reliable.

Equalization is for married spouses, not common-law partners

When a marriage ends, married spouses must generally split the property acquired during the marriage equally, and the balancing payment is called an equalization payment. The full value of the family home is shared even if one spouse owned it before the marriage.

Common-law couples are not legally required to split property acquired during the relationship. Living together for a long time does not, on its own, trigger that equal split.

What common-law partners generally keep

Each partner generally keeps what they bought.

If you put money or work into property that belongs to your partner, such as paying toward a house in their name, you may need a court order to recover your contribution. Whether you have a claim, and how strong it is, depends on the facts, so it is worth speaking with a lawyer before you assume either way.

The way the law treats the family home for unmarried partners is a point where the details matter. Do not assume the married-couple rules apply, and have a lawyer confirm your position.

What a separation agreement can do for you

A cohabitation agreement or a separation agreement can set out property rights between common-law partners. Separation agreements let spouses divide property as they choose. That freedom is the main reason to put the terms in writing.

• List the major assets, such as a home, vehicles, savings and pensions, and say who keeps each one.
• List the debts and say who is responsible for paying them.
• Deal with property one of you brought into the relationship or received as a gift.
• Set out any payment one partner will make to the other for contributions to property.
• Say how and when things will be transferred, such as a vehicle or a bank account.

Be aware that marriage contracts and cohabitation agreements must be signed by both partners in front of a witness, who also signs. Those same documents cannot decide parenting or decision-making for children. Ask a lawyer which signing rules apply to the agreement you are preparing.

Support and children are separate questions

Property is only one part of a separation. Spousal support may be available to a partner who lived with the other as a couple for at least three years, or who had a relationship of some permanence and a child together. The higher-income partner pays the lower-income partner, and support is not automatic.

If there are children, parenting and child support are decided on their own rules. Where a court is involved, financial statements are usually required if the case involves child support, spousal support, or property or debts. Those forms are a useful checklist of the information you should gather even if you are negotiating privately.

An agreement about spousal support should be made with full, honest financial disclosure, without pressure, and with an understanding of its terms, or a court can set it aside.

Making the agreement hold up

Each person should have their own lawyer review a separation agreement, because it is hard to change later. Only a court can change a support order or domestic contract, and the usual route is to negotiate a new contract and file it with the court using form 26B.

If support is part of the deal, enforcement matters. FRO enforces a separation agreement only if it is registered: you file it with the Ontario Court of Justice or Superior Court of Justice using form 26B, then send FRO the contract, the court-signed 26B and a completed FRO registration package.

What to do next

• Gather proof of who paid for what, including bank statements, receipts, title documents and loan papers.
• Write down each asset and debt, and note whose name it is in.
• Collect your tax returns and your partner's if you can; the usual benchmark for child support disclosure is the three most recent years.
• Decide which issues you can agree on and which need advice.
• Book a meeting with a family lawyer before you sign anything, especially if you contributed to property in your partner's name.

Every relationship is different, and a lawyer can tell you what your contributions may be worth and what a fair agreement looks like.

Frequently asked questions