Many women in common-law relationships believe they have exactly the same legal rights as women who are married. While there are many commonalities, there are some important differences, especially with respect to the way in which property is divided if the relationship ends.
There is no standard length of time of living together that makes a relationship “officially” common-law. For example:
- To make a claim under the Canada Pension Plan: one year
- To file as spouses under the Income Tax Act: one year
- To claim spousal support under the Family Law Act: three years or “some permanence” if parents of a child
Living common-law as opposed to being married has no negative impact on issues relating to children if the relationship ends. Both parents have an equal right to custody of the children – this issue will be determined using the best interests of the child test.
Whether or not they are married to one another, both parents have financial responsibilities toward the children.
Spousal support is available to common-law partners who meet the definition of spouse that appears in the Family Law Act. Section 29 defines spouse as two people who are married and
either of two people who are not married to each other and have cohabited:
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
However, common-law partners DO NOT have a legal right to an equal share in the family property, as married spouses do. Generally, when a common-law relationship ends, each person leaves with whatever property they brought into the relationship as well as any they bought during it.
If a woman leaving a common-law relationship wants to make a claim on property that she does not legally own (for instance, if the deed to the family home is in her partner’s name only), she must bring an application in family court using a “constructive trust” argument.
This means she has to prove that she contributed directly or indirectly to the value of that property. For example, if she can prove that she paid the taxes, contributed to the mortgage or paid for renovations or repairs, she could establish a direct contribution; if she can establish that she had raised the couple’s children, that might be an indirect contribution.
Common-law partners also DO NOT have a right to make a claim for exclusive possession of the matrimonial home if their name is not on the deed or lease.