Do Common-Law Couples Get Divorced in Ontario?

If you lived together without marrying, you may wonder whether you need a divorce to end things properly. The short answer is no: there is no divorce for common-law couples. That does not mean nothing needs to be sorted out.

This article explains why divorce does not apply, what you can ask a court or negotiate instead, and how separation is treated for tax and benefits.

Why there is no common-law divorce

Only legally married couples can divorce. The federal Divorce Act covers only married couples. Provincial and territorial laws cover unmarried couples who separate, including child support, spousal support and custody.

So there is no order to apply for that formally ends a common-law relationship. What remains are the questions that follow a separation: support, property, children and housing.

What you can ask for instead

In an Ontario family court, a general application (Form 8) is used when making claims other than a divorce. Parenting time, decision-making responsibility, child support and dividing property are among the issues a judge can be asked to decide.

Spousal support can be set by a negotiated separation agreement, a separation agreement filed with the court and registered with the Family Responsibility Office (Form 26B), or a court application where a judge decides. Many people reach an agreement without a judge deciding everything, and a lawyer can explain which route suits your situation.

Property and the home

Because the equal-split rule for married spouses does not apply to common-law couples, each person generally keeps what they bought. A partner who contributed to property the other owns may have a right to part of it, and may need to go to court to recover that contribution if it is not repaid by agreement.

If you rent, the tenancy matters. Joint tenants share one tenancy agreement and are each liable for the entire rent, while tenants in common are each responsible only for their own share. A tenant must give written notice (Form N9) to move out, at least 60 days for monthly or fixed-term tenants. Speak to a lawyer before moving out or ending a tenancy, because that may affect your partner and your own position.

How separation is treated for tax and benefits

Even without a divorce, the Canada Revenue Agency has its own rules. Under the Income Tax Act, once a couple cohabits in a conjugal relationship they are deemed to keep cohabiting unless they live separate and apart for at least 90 days because of a breakdown of the relationship. A separation of less than 90 days caused by a breakdown does not interrupt the 12-month period.

• A change in marital status must be reported by the end of the month after the change.
• A separation should not be reported until it has lasted at least 90 days, and the effective date is the day you started living apart.
• Benefits and credits are recalculated on adjusted family net income, starting the month after the change.
• If CRA finds an overpayment, it may keep future Canada Child Benefit payments or tax refunds until it is repaid.
• For the Canada Child Benefit, a child living with you 40% to 60% of the time is treated as shared custody, and each parent must immediately tell CRA of a new custody situation.

If you are still separated after filing and have been for 90 days or more, CRA says to change your status to separated using the first day of separation as the date, and you may need to file an amended return. A tax professional can help with your own return.

What to do next

• Write down the date you stopped living together as a couple.
• List the issues to resolve: children, support, property, housing.
• Collect tax returns, notices of assessment, lease or mortgage papers and bank statements.
• Plan to update CRA on time, using the day you began living apart as the separation date.
• Talk to a family lawyer about whether to negotiate a separation agreement or start a Form 8 application.

Frequently asked questions