Differing Rights: Married v. Common Law

While it has become socially acceptable for couples to live together without getting legally married, it is a mistake to believe that this will always make it easier for partners to separate if their relationship ends. If both partners maintain employment and are self-supporting, keep their property separate and never have children together, it may be easy to separate. However, more frequently people have children, buy homes, and take on the other obligations characteristic of a traditional marital life. Not surprisingly, our legal system has increasingly treated such relationships similar to that of a legal marriage. Ontario's Family Law Act provides that people who have lived together for at least three years or have had children together, are under the same legal obligations for spousal and child support as married couples.

Where married and common law couples differ in law is in the division of property accumulated during the relationship. The Ontario Family Law Act has a clear set of rules to equalize all assets and debts accumulated by married couples between the date of their marriage and their separation. This requires a calculation of each spouse's Net Family Property, with an equalizing payment from the spouse owning more property to the spouse owning less property. There is no similar legislation governing common law couples at this time but the courts have developed a set of legal principles, referred to as "unjust enrichment" and "constructive trust", to help deal with these issues. In a common law relationship, these concepts can be complicated and difficult to predict a legal outcome. It is a challenging area of law which requires knowledge of family law lawyer to assist the parties in knowing and applying their property rights.