Does Common-Law Time Count After You Marry in Ontario?

Many couples live together for years before they marry. If the marriage later ends, a common question is whether those early years are treated as part of the relationship or whether the clock only started at the wedding.

The honest answer is that it depends on the claim. Spousal support and property division use different rules, so the pre-wedding years matter a lot for one and very little for the other.

Support and property follow different rules

Ontario does not use one single start date for everything. For support, the length of time you lived together is a relevant factor. For equalization of property between married spouses, the starting point is the date of marriage.

How pre-wedding years affect spousal support

Under the Family Law Act, support rights are not limited to people who are married. Two unmarried people who have cohabited continuously for at least three years can qualify as spouses for support. Once you marry, you are a spouse in any event, and the court looks at the whole picture.

When deciding spousal support, the court must consider all the circumstances. Where the person claiming is a spouse, that includes how long the parties cohabited and how responsibilities taken on during that time affected earning capacity. The federal Divorce Act likewise requires a court making a spousal support order to consider the length of time the spouses cohabited.

Lawyers and judges often use the Spousal Support Advisory Guidelines to help set 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 before the wedding can count.

Support is still not automatic. You need 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 support.

Why the same years do not help with property

Equalization 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.

Net family property deducts the value of property, other than a matrimonial home, that a spouse owned on the date of the marriage, net of debts on that date. In plain terms, growth that happened while you lived together before the wedding is not shared through equalization.

The main exception is the matrimonial home. The date-of-marriage deduction does not apply to it, so a home one partner owned before the wedding that becomes the family residence is not deducted.

Other claims for the years before the wedding

Ontario says common-law 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. 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.

Whether a claim like that is available for contributions made before the wedding, and which time limit applies, depends on the facts. Most other civil claims fall under a basic two-year limitation period that runs from the day the claim was discovered. Because of that, it is sensible to get advice early rather than wait.

What to do next

Time limits differ by claim. Support under the Family Law Act has no limitation period. An equalization claim must be brought by the earliest of two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death.

• Write down the date you started living together, the date of the wedding and the date you separated.
• List what each of you owned on the wedding day, including the home and any debts.
• Gather records of who paid for what, and of any career or caregiving choices you made.
• Check whether you signed a cohabitation agreement or marriage contract.
• Note the valuation date, which for married spouses is the earliest of several events, including separation with no reasonable prospect of resuming cohabitation.
• Speak with a family lawyer before any deadline gets close.

Frequently asked questions