Does Living Together Before Marriage Count After Separation in Ontario?

Many couples live together for years before they marry. If you later separate, you may wonder whether those earlier years are treated as part of the relationship or as if they never happened.

The answer depends on what you are claiming. Spousal support and property equalization follow different rules, and an agreement you signed before the wedding may also change its legal character once you marry.

Spousal support: the earlier years can count

When a court decides spousal support, it must consider all the circumstances. For a spouse who is the dependant, these include how long the parties cohabited, and how caring for a child or taking on household work affected earnings and career. Under the federal Divorce Act, a court making a spousal support order must also consider the length of time the spouses cohabited.

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 federal User's Guide, the length of cohabitation, not just the length of the marriage, sets the amount and duration of support under the without child support formula. That is how years spent 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 during the relationship, need after separation together with the other spouse's ability to pay, or an agreement that provides for support.

Equalization: the earlier years do not count

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.

Pre-marriage cohabitation does not count here. 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. Growth during the years of living together before the wedding is therefore not shared through equalization.

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

If you had a cohabitation agreement before marrying

Two unmarried people who are cohabiting or intend to cohabit may make a cohabitation agreement. It can cover property, support and other matters, though it cannot fix decision-making responsibility or parenting time for children.

If the parties to a cohabitation agreement marry each other, the agreement is deemed to be a marriage contract. One consequence is that any provision in a marriage contract that tries to limit a spouse's matrimonial home rights is unenforceable.

An agreement that deals with a matter also covered by the Family Law Act generally prevails unless the Act provides otherwise. So what your agreement says about property and support can matter a great deal, which is why its exact wording is worth reviewing with a lawyer.

Rules that still apply to your agreement

• Formalities: a domestic contract, including a cohabitation agreement, and any agreement amending or rescinding one, is unenforceable unless it is in writing, signed by the parties and witnessed.
• Disclosure and understanding: a court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, debts or other liabilities that existed when it was made, or did not understand its nature or consequences.
• Support waivers: a court may set aside a support provision or waiver where it results in unconscionable circumstances, where the dependant qualifies for support from public money, or where support under the contract is in default.
• Children: a court may disregard a child support term that is unreasonable having regard to the child support guidelines.

Ontario's guidance advises that partners should speak to different lawyers and exchange financial information before signing.

Deadlines and what to do next

An equalization claim by married spouses 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. By contrast, there is no limitation period for a proceeding to obtain support under the Family Law Act.

• Write down the date you began living together, the wedding date and the separation date.
• List what each of you owned on the wedding date, including any home.
• Gather any cohabitation agreement, marriage contract or later amendments.
• Note any career sacrifices or caregiving during the relationship.
• Speak to a family lawyer before the equalization deadline passes.

Frequently asked questions