Common-Law Property Rights in Ontario: Who Keeps What After a Split?

If you and your partner lived together for years without marrying, you may assume the law treats you like a married couple when you separate. For property, it generally does not. Many people learn this only after the relationship has ended and the home, savings or furniture are in dispute.

This article explains why the married-spouse property rules do not reach unmarried partners, who usually keeps what, how the family home is treated, and which claims remain open. It is general information, and your facts will matter.

Why equalization does not apply to unmarried partners

Equalization is the process Ontario uses to even out the growth in each married spouse's wealth. When married spouses divorce or separate with no reasonable prospect of resuming cohabitation, the spouse with the lower net family property is entitled to one-half the difference.

The Family Law Act's general definition of spouse covers only two people who are married to each other, or who entered a void or voidable marriage in good faith. That definition controls the family property part of the Act and the matrimonial home part. Living together in a conjugal relationship is called cohabiting, but cohabiting alone does not make you a spouse for these parts.

Ontario states it plainly: common-law couples are not legally required to split property acquired while they lived together, and they cannot share in the increase in value of property the other brought into the relationship.

Who keeps what

For unmarried partners, furniture, household items and other property belong to the person who bought them. In practice, that means proof matters: receipts, bank records and whose name is on a title, account or vehicle ownership.

There is an exception. A partner who contributed to property the other owns may have a right to part of it. If the owner will not agree to repay, the partner may have to go to court. Whether you have such a claim, and what it is worth, depends on what you contributed and how.

The family home

Married spouses have an equal right to possession of the matrimonial home, and a court may give one spouse exclusive possession regardless of ownership. Those rights come from a part of the Act that uses the married-only definition of spouse, so they do not cover unmarried partners.

As a result, common-law partners have no statutory right to share or stay in a home owned by the other partner. If the home is in your partner's name only, your options may depend on any agreement you signed and on whether you contributed to the property. If you are on title together, your rights as a co-owner are a separate question worth raising with a lawyer.

Safety is treated differently. A court may make a restraining order where the applicant has reasonable grounds to fear for their own or a child's safety, and it can be made against a person who is or was cohabiting with the applicant for any period of time. If you are afraid, do not wait on the property questions.

Claims that do not depend on marriage

• Spousal support: unmarried people can be spouses for support if they cohabited continuously for at least three years, or are in a relationship of some permanence and are the parents of a child.
• Support is not automatic. You must show a basis for it, such as caregiving or career sacrifices, need together with the other spouse's ability to pay, or an agreement.
• Child support: every parent must support their child to the extent they are able, whether or not the parents were married.
• Time limits: there is no limitation period for a proceeding to obtain support under the Family Law Act. Time limits for property claims depend on the facts, so it is worth confirming the deadline with a lawyer early.

Living apart does not automatically rule out cohabitation. The Court of Appeal for Ontario has upheld a finding that partners of almost 14 years who kept separate homes throughout were spouses for support, after weighing factors such as shared shelter, services, economic support and how society saw the couple. Results are fact-specific.

What to do next

• Gather proof of who paid for what: receipts, bank and mortgage records, title documents and any loan or gift paperwork.
• Write down the dates you moved in together, separated, and any periods apart, since these affect support rights.
• Check whether you ever signed a cohabitation agreement, because an agreement that deals with a matter also covered by the Act prevails unless the Act provides otherwise.
• Act promptly on any property-contribution claim because a two-year period may apply.
• If you separate on good terms, a separation agreement can set out your rights and obligations.
• Speak with a family lawyer before you move out or sign anything.

Frequently asked questions