Common Law Separation Canada FAQs
What is a common-law relationship?
In Canadian family law, you are in a common-law relationship if you and your partner have lived together for at three years in a “marriage-like relationship.”
The courts in Canada have a fair amount of flexibility in determining whether a relationship is “marriage-like,” but the primary family law tests are the common sense ones: Did the couple live together? Did they share financial resources and obligations? Did they refer to each other as spouses or in some other term indicating a relationship equivalent to marriage? Did people perceive them as if they were married? Did they share household labour-in particular, did one member of the couple stay home to manage the home and thereby become dependent on the other?
If you consider your relationship marriage-like, chances are that a Canadian family law court will, too.
Can spousal support be ordered in the case of common-law relationships?
Yes; if a couple lived together for at least three years in a “marriage-like relationship,” it is possible to obtain spousal support under Canadian family law.
Under Canadian family law, when a common-law relationship breaks up, is it the same as divorce?
No, there are several key differences. One is that no divorce is needed. To end a common-law relationship, all you need to do is end it. However, it’s not at all unusual that one or both partners will feel the need for legal action to resolve matters such as child custody and access, the division of property, or other Canadian family law issues.
Secondly, when a married couple divorces, the basic rule is that the increase in value of property during the marriage is shared equally. This basic rule does NOT apply to common-law couples, because common-law relationships are excluded from the provisions of the Family Law Act that govern division of property.
For instance, in the case of a common-law couple, if the house isn’t registered in your name, you will need to prove that you are entitled to a share of the house. You might do so by showing that you made a monetary contribution toward the purchase of the house, or that your contributions of time and effort (say, by staying home and managing the home) enabled your spouse to purchase the house, so that it would be unfair for your spouse to be the only one who benefits from the purchase.
Is there any way to protect myself from the burden of proving my contribution in case my common-law relationship ends?
Yes, if you and your spouse sign a cohabitation agreement.
This is a written agreement specifying how you will deal with your property should your relationship end, either through separation or death. For instance, you may want a cohabitation agreement that makes you and your spouse subject to the same family law rules governing division of property for married couples.