Based on the results of a recent census, it has been noted that more Canadians are entering into common law relationships than ever before. While marriage creates many ground principles in the view of the courts, common law is derived from conventions and judicial practice rather than marital regulations. As a result, what defines a common-law relationship varies by province, and the legal rights range significantly from those granted to married couples under the Family Law Act. Here are 5 important common law rules to account for.
Requirements to be considered a common-law relationship
A common-law relationship entails more than just a long-term romantic bond with someone. In Ontario, a common-law marriage is a partnership in which two individuals cohabitate as if they were married, but do not have not been formally married. They share a home, finances, social circles, and an emotional bond. When all of these conditions are met, they are said to be in a conjugal relationship, which is why they are considered to be in a common-law marriage. They may also have biological or adoptive children together. Ontario law does not officially govern common-law marriages, but the law does apply to these partnerships in a variety of ways. For one thing, not everyone in a conjugal relationship is considered to be in a common-law partnership. There are several legal conditions that must be satisfied beforehand. Under the Ontario Family Law Act, people may be considered as being in a common-law relationship if they have lived together in a conjugal relationship for a continuous period of 3 or more years or if they have a child together by birth or adoption and have been residing together.
Division of assets is based on what is under your name unless otherwise stated
Spouses in a legal marriage are entitled to an equalization of family assets under the Family Law Act. However, this entitlement does not automatically apply in common-law marriages. Each individual departs the relationship with all of their possessions, obligations, and other property that is under their name. A person who has made concrete contributions to the marriage, on the other hand, may seek the court to order their spouse to repay them. They can do so by claiming resultant trust, constructive trust, or unjust enrichment. Assets can also be divided if at the start of the relationship a cohabitation agreement was reached in order to settle these issues from early on. In contrast, a couple could enter into a separation agreement to provide the division of assets after separation. Both forms of agreement can be done through the assistance of a lawyer or professional mediator.
Family home follows the same division of assets with some considerations
Common-law partners, unlike married couples, do not have an equal entitlement to the family or matrimonial home. The home, like any other property in a common-law relationship, belongs to the individual who bought it and whose name is on the title, or lease if the home is rented. If you own your home, you have the legal right to evict your common-law partner if your relationship fails. However, unless you are concerned about your personal safety, it is not advised to take this step. Courts often frown on such behavior, especially if your spouse is financially unable to support themselves. If your spouse files for spousal support, your actions in the home may impact the court’s decision.
If your spouse owns the marital house, you still have several alternatives if you want to stay in the property, especially in the short term. To begin, if you fulfill the criteria of “spouse” under Part 3 of the Family Law Act and are thus eligible for spousal support, you may petition the court for permission to remain in the home as part of a support order. The court can issue an interim or final order regarding the marital residence. Second, if your spouse has threatened violence and you are concerned about your or your children’s safety, you can seek a restraining order. Section 46(2) allows you to seek a restraining order against someone with whom you have cohabited for any period of time. The court may issue an interim or permanent restraining order.
Common-law and married couple have the same rights when it comes to children
When common-law parents stop living together, there is no need for formal divorce proceedings as there is no marriage to dissolve. However, they must decide what is best for their children. The regulations governing decision-making responsibility and parenting time are the same for married and common-law couples. Parents must decide on living arrangements for their children as well as what the parenting time allotted to each will be so that each parent may spend time with their children. In the case that the parents cannot decide on who will have the decision-making responsibility for their children, the courts will decide based on what is in the child’s best interest.
Spousal support can be requested is a common-law relationship ends
In Ontario, you are entitled to spousal support if you were in a common-law relationship that meets the requirements of a common-law relationship. However, not every spouse with a lower income is entitled to spousal support when they separate. The circumstances of their relationship must prove that one spouse exhibits a financial need for support and that it would be fair to compensate one spouse for taking on a greater proportion of unpaid work at the expense of their career. Another circumstance that would allow for spousal support is if a written agreement exists stating that one spouse will support the other in the event their relationship ends. If you are entitled to spousal support from your ex-spouse, you can either petition the Court for a spousal support order or negotiate a spousal support arrangement with your spouse directly.
To guarantee that the spousal support conditions of a separation agreement are legally binding, it is critical that both you and your spouse are completely honest about your financial situation during the discussion. It is also suggested that you individually get separate legal counsel before signing any agreements. This implies that you must each speak with your own lawyer regarding the terms of the agreement to ensure your best interests are being considered. Your spouse cannot accompany you to your lawyer’s office and may have no personal relationship with your lawyer.
As described above, these are some of the most important common law rules to keep in mind. The similarities and differences between a legally binding marriage and those of a common-law relationship can become confusing at times. If you have any questions regarding family law or topics regarding common law relationships, we are here to assist. At Sage Law Group we offer comprehensive family law services in Barrie and South Eastern Ontario. Please give us a call today 705-735-0003 and let us help you.
