Protect your rights before starting a common-law relationship

By LegalMatters Staff • With more Canadians choosing to live common law it is important to make sure your property rights are protected in case the relationship breaks down, says Toronto family lawyer A. Julia P. Tremain.

In the past few decades, relationship arrangements in Canada have changed with marriage rates declining, according to a recent Statistics Canada report. But while living common law may seem attractive to many, Tremain, partner with Waddell Phillips Professional Corporation, says it is essential to know your rights before embarking on any arrangement.

“Generally, there is a real misconception that common-law relationships have done away with the need for marriage,” she tells LegalMattersCanada.ca. “In other words, all your rights are the same whether you are common law or married but that’s not the case.

“It always makes sense to get some legal advice in terms of the implications of living together. What obligations do you have, what rights do you have? Everyone needs to do that.”

According to StatsCan almost three in four Canadians aged 25 to 64 live with a partner, with more than half of those in marriages.

Marriage rates declining

“However, partnership arrangements have evolved significantly in recent decades. Marriage rates have declined while living common law, as well as union dissolution through separation and divorce, have become increasingly common,” the report states.

“There has been a shift toward common-law living in recent years. Over one-fifth of all couples (21.3%) were living common law in 2016, more than three times the share in 1981 (6.3%).”

Tremain says family law varies from province to province so getting the correct advice is vital.

“There are provinces where you are common law and you still have property rights, but not Ontario,” she says. “The way that the Ontario Family Law Act works is that there are matrimonial property rights that exist if you are married. They do not apply when living common law. I think it is a bit of a surprise when people discover this.”

Tremain says knowing what you are entitled to if the relationship ends can be confusing. Just because you help pay the mortgage doesn’t mean you are entitled to the proceeds of the sale of the house when it is sold if that property is in your partner’s name.

Paying household bills

“If you contribute to the mortgage it could be seen as you just paying rent. You would have been paying rent otherwise,” she says, adding the same principle applies when helping to pay household expenses such as utility bills. “You would have been doing that whether you were renting or however else you were living.”

Tremain says a person may be able to make a constructive trust claim if they have done something to increase the value of the home, such as doing renovations on the basement, but these can be very difficult to prove and the burden is on the person making the claim to do that.

She explains that the nature of a common-law relationship can also make it difficult to know what rights you are entitled to if the partnership ends.

For example, Tremain says, “you are not entitled to spousal support until you have lived together for three years or you have a child together and have a relationship of some permanence.”

One problem can be pinning down the exact date when the relationship began. Unlike a marriage where the date is documented, there can be disputes about when a couple started living common law, she says.

Changing circumstances is also another aspect to consider when living common law, Tremain says. 

Look at the arrangement

“There are many young people without many assets who start living together so they don’t think they need a cohabitation agreement. However, five or 10 years down the road, situations change,” she says. “Even if they have a cohabitation agreement, anytime there’s a big change such as buying a house, people should sit down, look at their arrangement and ask each other whether they are still on the same page .”

Even those who are more mature who are living common law later in life should have a cohabitation agreement to protect their assets and establish a clear understanding of the rights of both people in the relationship, Tremain says.

She says it’s easy to understand why people may not consider seeking legal advice when they start living together but it is always better to be safe than sorry.

“Everyone is happy at the beginning. They say, ‘we’re all good, we’ll share everything, we’ll be fine,’” Tremain says. “It’s still a good idea to seek legal advice.”