When a common-law relationship ends, it can be as painful as a divorce between legally married couples. The partners, whether same-sex or opposite may have shared business and financial interests, property, assets and/or children, apart from the physical and emotional bonds.
Most people assume that common-law couples have the same rights as legally married ones. For many purposes, such couples are treated in the same way as married ones. This includes income-tax filing, pension plans with spousal coverage etc. However in certain other aspects there are crucial differences.
Not being aware of these differences can impact your rights, entitlements and responsibilities in the event of a breakdown of the relationship. Hence, it’s essential that common-law couples consider making a cohabitation agreement that specifies each partners rights, obligations, entitlements and how they will flow as a result of this relationship. Common-law relationships are viewed differently in the laws of different provinces across Canada. It’s important for couples to protect their individual rights no matter how stable and strong the bonds are.
An experienced family lawyer can assist you with the right advice, information and assistance.
Important Differences Between Married and Unmarried Couples
- In Ontario, only married spouses can claim equalization of property accumulated during the marriage
- When legal marriages end in Ontario, under the Ontario Family Law Act, married spouses have equal shares in what was accumulated during the marriage
- Law assumes that both spouses contributed equally to wealth-building whether or not this was actually the case
- Common-law spouses have no automatic right to equalization
- Length of relationship, birth of children, proof of traditional/marriage-like relationship etc are immaterial in common-law relationships
- Each spouse in common-law gets to keep their personal property
- However, they can apply the principle of “unjust enrichment” if one spouse has accumulated property due to other’s contributions
- Spousal support is mandatory for both types of relationships but in common-law relationships, the couple has to be cohabiting for at least three years or have a child together to claim support
- Only married spouses have an automatic right to the estate of the deceased spouse
- Only valid wills can assure common-law spouse of a share in the estate
Cohabitation Agreements
Precisely because of the important differences between married and common-law couples, it’s essential that a cohabitation agreement is legally drawn up. Common-law spouses usually invest the same amount of time, effort and emotions in their relationships but they do not have the same legally recognized rights to pensions, family property, inheritance etc.
Cohabitation agreements ensure that mutually-agreed upon terms govern property, child-custody, support etc in the event of separation or death.
They are documentation for couples who want protection in case of relationship breakdown to avoid litigation and ill-feelings. It also provides a map for relationship expectations, aspirations and goals. Ontario imposes restrictions on what can and cannot be included in cohabitation agreements. Imposition of fidelity/chastity are untenable, while issues of child-custody/access/support may sometimes be weak in court.
Cohabitation agreements have to be signed, witnessed and accompanied by full financial disclosure to be valid.
