Writing a Separation Agreement for Common-Law Couples in Ontario

When a common-law relationship ends, a clear written agreement can save you stress and cost. It lets you decide the terms yourselves instead of leaving them open.

This article explains in general terms what such an agreement should cover and what makes it hold up. Every situation is different, so have a lawyer review the details before you sign.

Why the agreement matters for unmarried couples

Ontario does not divide property between common-law couples when they separate, and each partner keeps the property they bought. Neither partner has a right to share the other's increase in property value.

An exception exists for contributions: 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 repay the contribution. A written agreement can settle those questions without a court.

What to put in the agreement

• Property: who keeps each item, home and account, and how any contribution to the other's property is dealt with.
• Joint ownership: how you will handle property held in joint tenancy, which carries a right of survivorship, or as tenants in common, which does not.
• Debts: who pays joint credit cards and overdrafts. Co-borrowers on a joint credit card are equally responsible for the balance, and joint bank account holders share responsibility for all transactions.
• Spousal support: whether either partner will pay, and how much. A common-law spouse under section 29 of the Family Law Act must support the other according to need, to the extent able.
• Child support: every parent must support their child to the extent they are able.

Who counts as a spouse for support depends on the facts. Under the Family Law Act, it includes partners who cohabited continuously for not less than three years, or who are parents of a child in a relationship of some permanence.

Making it enforceable

A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. For agreements between unmarried partners, Ontario's guidance says both must sign in front of a witness, each should speak to a different lawyer, and you should exchange financial information before signing.

Full disclosure matters. 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. It may also do so if a party did not understand its nature or consequences, or otherwise in accordance with the law of contract.

Where a court can step in anyway

So an agreement cannot fully remove a court's oversight of children or support. Do not rely on a waiver without advice.

What to do next

For tax and benefits, separation must last at least 90 days, and the separated status then takes effect from the day you started living apart. You must tell the CRA about a new marital status by the end of the month after the change, through its digital services or on Form RC65, Marital Status Change.

• List all assets, debts, accounts and homes, and gather statements.
• Exchange complete financial information with your former partner.
• Each of you should see a different lawyer.
• Sign in writing in front of a witness.
• Update the CRA about your marital status on time.

Frequently asked questions