Lived Together Before Marrying in Ontario? How Common-Law Years Count on Separation

Many Ontario couples live together for years before they marry. When the marriage later ends, a common question is whether those earlier years count, or whether the clock only starts on the wedding day.

The answer is different for property and for support. This article walks through each, the main exception for a home owned before the wedding, what happens to a cohabitation agreement, and the practical steps worth taking.

Property: equalization starts at the wedding date

Equalization of net family property applies to married spouses. 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.

In working out net family property, the value of property (other than a matrimonial home) that a spouse owned on the date of the marriage is deducted, net of debts on that date. Time spent living together before the wedding does not count for equalization, so growth during those common-law years is not shared through equalization.

For the common-law years before marriage, Ontario says couples are not legally required to split property acquired while they lived together, and furniture and household items belong to the person who bought them. There is an exception: a partner who contributed to property the other owns may have a right to part of it, and may have to go to court if the owner will not agree to repay.

The exception: a home owned before the wedding

The date-of-marriage deduction does not apply to a matrimonial home. A home one partner owned before the wedding that then becomes the family residence is not deducted. A matrimonial home is property a person has an interest in that the person and their spouse ordinarily occupied as their family residence.

In practice, this means a house you owned before the wedding may be treated very differently from an investment account or business you owned on the same day. How that plays out in numbers depends on the facts, so it is worth getting the figures reviewed.

Spousal support: the years together can count

Support works differently. Under the federal Divorce Act, a court making a spousal support order must consider the length of time the spouses cohabited. Under the Family Law Act, where the dependant is a spouse, the court also considers how long the parties cohabited, and the effect of housekeeping, child care and career sacrifices.

Ontario says lawyers and judges often use the Spousal Support Advisory Guidelines to help set the amount and length of support, but they are only guidelines. Under the without child support formula, the length of cohabitation, not just the length of the marriage, sets the amount and duration, which is how years living together before the wedding can count.

Support is still 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 that provides for it.

What happens to a cohabitation agreement when you marry

Two unmarried people who are cohabiting or intend to cohabit may make a cohabitation agreement, which can cover property, support and other matters. If the parties marry each other, the agreement is deemed to be a marriage contract.

• A domestic contract must be in writing, signed and witnessed, or it is unenforceable.
• A provision in a marriage contract that tries to limit a spouse's matrimonial home rights is unenforceable.
• A court may set aside a contract, or part of it, if significant assets or debts were not disclosed or a party did not understand its consequences.
• A court may set aside a support waiver in some situations, including unconscionable circumstances.
• Parenting terms cannot be fixed by the agreement, and a court may disregard child-related terms in some cases.

Where a domestic contract deals with a matter also covered by the Family Law Act, the contract generally prevails unless the Act provides otherwise.

What to do next

• Write down what each of you owned and owed on the wedding day, with statements and valuations if you can.
• Keep records showing whether a home was owned before the wedding and when it became the family residence.
• Find any cohabitation agreement and check what it says now that you are married.
• Note the key dates: when you began living together, when you married and when you separated.
• Keep track of time limits. 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.
• Speak to a family lawyer before signing or relying on any agreement.

Because the valuation, the home exception and any agreement can change the result, a lawyer can review your dates and documents and explain how the rules apply to you.

Frequently asked questions