Is There Common Law Marriage in Ontario? What the Law Says

You may have heard that after a certain number of years together you are "married by common law." In Ontario, that is a common misunderstanding, and it can cause real problems if a relationship ends or a partner dies.

This article explains what the law actually says, what rights unmarried partners do have, and where the gaps are.

Common law relationships are not marriages

Under the Family Law Act, "spouse" means two people who are married to each other, or who entered a marriage that is voidable or void. That definition governs property division and the matrimonial home, and it does not include unmarried partners.

So no length of time together turns an unmarried couple into a married one. What the law does is give unmarried partners some, but not all, of the rights that married spouses have.

Rights you do have: support

For support, the Family Law Act treats certain unmarried partners as spouses. This includes two people who have cohabited continuously for not less than three years. It also includes unmarried partners who cohabited in a relationship of some permanence and are the parents of a child, however long they lived together.

Every spouse, including one of these common-law spouses, must support themselves and the other spouse according to need, to the extent they are able. When the court sets an amount, it considers how long the couple cohabited, among other factors.

Child support is separate. Every parent must support their child to the extent they are able, whether or not the parents were ever married.

Where the law treats you differently: property and the home

Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share the other's increase in property value. 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 unless the owner agrees to pay the contribution back, the partner may have to go to court.

The matrimonial home rules also do not cover unmarried partners, because they use the married meaning of spouse. Being named on title, or not, can matter a great deal for an unmarried couple.

If a partner dies

A common-law spouse does not inherit under the Succession Law Reform Act if there is no will. A married spouse with no children, by contrast, may be entitled to the whole estate, unless the spouses were separated at the time of death. If you want your partner to be looked after, a will matters.

There is a possible safety net. For dependant support claims, "spouse" includes unmarried partners who cohabited for three years or had a child in a relationship of some permanence. If the deceased did not make adequate provision for the proper support of their dependants, the court may order support out of the estate. A dependant includes a spouse the deceased was supporting, or was legally obliged to support, immediately before death.

• An application may not be made more than six months after letters probate or letters of administration are granted.
• A court may allow a late application, but only for the part of the estate not yet distributed.
• Joint accounts, property held in joint tenancy and life insurance the deceased owned can be counted as part of the estate for these claims.

Writing your own rules and next steps

Two unmarried people who are cohabiting, or intend to, may make a cohabitation agreement about their rights and obligations, including property and support. It is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance also advises that each partner speak to a different lawyer and exchange financial information before signing. If you later marry each other, the agreement is deemed to be a marriage contract.

Agreements have limits. A court may set one aside if a party failed to disclose significant assets or debts, or did not understand its nature or consequences. A support waiver can also be set aside in some situations, such as unconscionable circumstances.

• Find out what you own and whose name it is in.
• Check that your will and beneficiary designations reflect your wishes.
• Consider a cohabitation agreement before problems arise.
• If you are separating or a partner has died, speak with a lawyer about deadlines and options.

Frequently asked questions