Can You Be Common Law While Still Married in Ontario?

You and your spouse have separated, but you are not divorced, and you have since moved in with someone new. It is natural to wonder what that makes you in the eyes of the law.

There is no single label. Different laws define spouse and common-law partner for their own purposes, and some questions about overlapping relationships depend on the facts and are worth confirming with a lawyer or accountant.

Living together does not depend on being unmarried

Under the Family Law Act, to cohabit means to live together in a conjugal relationship, whether the couple is married or not. So being legally married to someone else does not by itself stop a new relationship from being a cohabiting one.

At the same time, the general definition of spouse in Parts I and II of the Act covers only people who are married to each other, or who entered a void or voidable marriage in good faith. Your legal marriage therefore continues to carry its own rights until it ends.

What still applies between you and your legal spouse

Separation does not end the legal obligations of marriage. Every spouse must support themselves and the other spouse according to need, to the extent they are able. Support claims under the Family Law Act have no limitation period.

Property is also still in play. On divorce, nullity, or separation with no reasonable prospect of resuming cohabitation, the spouse with the lower net family property is entitled to one-half of the difference. An equalization claim must be brought by the earliest of two years after divorce or a nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death.

Whether a new relationship changes any of these deadlines depends on your situation, so it is worth confirming with a lawyer. Child support also does not depend on marriage, since every parent must support their child to the extent they are able.

Your new partner and support or property

For support, the Act widens the word spouse to two unmarried people who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. Ontario's guidance describes the same two routes.

How that wording applies when one partner is still legally married to someone else depends on the facts. It is a point to confirm with a lawyer before you rely on it.

On property, Ontario says common-law couples are not legally required to split property acquired while they lived together, and household items belong to the person who bought them. A partner who contributed to property the other owns may have a right to part of it.

Taxes, benefits, pensions and immigration

Each area has its own test, so the same household can be treated differently depending on the purpose.

How to report your status for tax when you are still married to someone else, and how immigration officials treat that situation, depends on the circumstances and is worth confirming with the CRA, IRCC or an accountant.

What to do next

• Record the date you and your spouse separated and the date you began living with your new partner.
• Keep evidence of shared expenses, a shared address and how you present yourselves as a couple.
• Diarize the equalization and any other deadlines that apply to your marriage.
• Tell the CRA about a change in marital status by the end of the month after it happens.
• Check your pension, benefit plan and estate documents for who is named and how spouse is defined.
• Ask a lawyer whether to finalize your divorce and how it affects your new relationship.

If you have no will, a common-law partner does not inherit automatically, because the intestacy rules use the married-spouse meaning. That is one reason to review your estate planning.

Frequently asked questions