Is a Common-Law Breakup a Divorce in Ontario? What Changes

If you and your partner lived together without marrying and the relationship is ending, you may wonder whether you have to get a divorce. You may also wonder whether you have the same rights as a married person. The short answer to the first question is no. The answer to the second is more mixed.

This article explains why a divorce is not part of a common-law breakup. It also compares how property and support generally work for married and unmarried couples. Every situation is different, so treat this as a starting point and confirm the details with a lawyer.

Why there is no divorce for common-law partners

A divorce is a legal process that ends a marriage. Only married couples can divorce, so an unmarried couple has nothing to divorce from. How the rest of your separation is handled depends on your situation, so it is worth confirming with a lawyer.

For married spouses the picture is different. A divorce takes effect on the 31st day after the judgment granting it is made, and once it takes effect it ends the marriage and has legal effect throughout Canada. Married spouses also have to meet rules such as one year of living separate and apart in most cases. None of this applies to you if you were never married.

That does not mean a common-law breakup has no legal side. Property, support, the home and any children can all still need to be sorted out. The difference is that different rules apply.

Property: the biggest difference

When married spouses separate, Ontario's Family Law Act uses an equalization process. In general, the spouse with the smaller net family property is entitled to one-half of the difference between the two spouses' net family property.

Unmarried couples are not legally required to split property acquired while living together. How property is sorted out between you depends on your situation, so it is worth confirming with a lawyer. There is an exception to keep in mind: a partner who contributed to the other's property may have to go to court to recover that contribution.

Because the rules differ, it matters a great deal what you paid for, who is named on title or accounts, and what you can show about your contributions. Gather that paperwork early.

Spousal support after a common-law relationship

Support is one area where unmarried partners are not left out. For spousal support under the Family Law Act, "spouse" also includes unmarried people who lived together continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child.

Meeting that definition does not decide whether support will be ordered or how much. How a court weighs your circumstances depends on your facts, so it is worth confirming with a lawyer. Ontario guidance says the Spousal Support Advisory Guidelines are only guidelines, though lawyers and judges often use them to help set the amount and length of support.

• You may count as a spouse for support if you lived together continuously for at least three years.
• You may also count as a spouse for support if you are in a relationship of some permanence and are the parents of a child together.
• Your own circumstances, which a lawyer can help you assess.

The home, children and other loose ends

Who stays in the home, and what happens to the children, are separate questions from property. The rules in this area can depend on whether you were married, who owns or rents the home, and your children's circumstances. A lawyer can confirm how they apply to you. Do not assume the married-couple rules cover you, or that they leave you out.

A few other points are worth checking, even though no divorce is involved:

• Sponsorship: a spousal sponsorship undertaking lasts 3 years from the day the sponsored person becomes a permanent resident (outside Quebec), and separation does not end the sponsor's financial responsibility.
• Wills: review your will after a breakup. For married spouses, divorce, and from January 1, 2022 certain separations, revoke gifts to the former spouse and their appointment as executor unless the will shows a contrary intention. Whether anything like this applies to an unmarried partner is worth confirming with a lawyer.
• Beneficiary designations: update them on life insurance, RRSPs and similar accounts if you want to change who receives them.
• Agreements: if you reach a mediated agreement, Ontario guidance says each party should get advice from a different lawyer before signing so that it is legally binding.

What to do next

No divorce is needed to end a common-law relationship, and taking a few practical steps now can protect you later.

• Write down the date you started living together and the date you separated.
• Collect records of who paid for what: purchase agreements, title documents, bank and loan statements.
• Make a list of anything you contributed to the other person's property, such as money or work on a home.
• Note whether you have children together and how they are cared for now.
• Look for any cohabitation agreement or written understanding between you.
• Review your will and beneficiary designations.
• Speak with a lawyer about property, support and children before you sign anything.

Mediation can help you reach an agreement without a court fight. On-site mediation is free on the day a matter is scheduled in court, and off-site mediation is charged on a sliding scale. A lawyer can also tell you whether any deadlines apply to a claim in your situation.

Frequently asked questions