Our Family Lawyers at SV Law are frequently consulted on the legal rights and remedies available to common law spouses upon a breakdown of a relationship. A breakdown of the relationship could include separation or death of one of the partners.
What is a “common law spouse”?
It is common knowledge that “a spouse” refers to someone who is married to another person.
It is not as widely known that, for spousal support purposes, the legal definition of a spouse in the Family Law Act also includes someone who is unmarried and:
who has cohabited continuously for a period of at least three years; or,
who has cohabited in a relationship of some permanence, if they are the parents of a child.
To make matters even more complicated, the Income Tax Act states that a cohabiting spouse or common law partner means spouses who are not living separate and apart from each other. Under the Income Tax Act, the spouses must have lived separate and apart for 90 days to be considered separated.
Put simply, for income tax purposes, as soon as you live with your partner, you are considered to be a cohabiting spouse or common law partner.
Under the Family Law Act, both married spouses and common law spouses may claim spousal support or child support from their partner upon the breakdown of the relationship.
Common law spouses in Ontario do not enjoy the same property rights as married couples. Typically, the division of property following the breakdown of a relationship is based on ownership.
Each partner would retain the items that they owned at the commencement of the relationship or that they purchased during the relationship.
If the partners purchase items together, the joint purchases are owned by both parties and the value of the purchases are shared equally upon separation.
There is currently no automatic right in the legislation permitting common law spouses to share their partner’s assets or any increase in value of their partner’s assets. However, in some cases, it is possible for a common law spouse to make a claim against their partner’s property.
Contact a Lawyer
If you are concerned about issues arising as a result of the breakdown of a common law relationship or marriage, you should seek legal advice from a family law lawyer.
The Family Law Practice Group at SV Law contains a team of skilled and experienced lawyers who would be happy to assist you.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.