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Common Misconceptions: Principle Differences Between Common-law Relationships and Marriage

August 22, 2016

Rights arising under a common law relationship differ significantly from those afforded to married spouses.

In a common law relationship, one becomes a spouse after three years of continuous cohabitation or upon becoming the natural or adopted parents of a child, in a relationship of some permanence. For married couples, one automatically becomes a spouse after marriage, regardless of the duration of the relationship. A married spouse could be entitled to spousal support after one year of marriage; whereas a partner in a common-law relationship could be ineligible for support after cohabiting for two years and eleven months.

Married spouses have a possessory right to the matrimonial home whereas a common law spouse who is not on title does not have the same rights. A common law spouse who is not on title does not have the right to claim exclusive possession upon separation (the right to reside in the home to the exclusion of the other), nor is the spouse’s consent required for transactions affecting the home including sale, refinancing or transferring title. No length of time will give a common law spouse equivalent rights to the family residence as a spouse has to a matrimonial home under Part I of the Family Law Act.

Limitation periods also differ. A married person has 6 years from the date of separation or two years from the date of divorce to seek equalization of property. In most cases, a common law spouse has two years to make a claim for an entitlement to property. Common law spouses do not have a presumptive right to share in the property of the other partner which was acquired throughout the relationship.

While there is no automatic entitlement to make a claim for property in a common law relationship, this has not stopped Courts from making property awards where they find parties to be involved in a joint family venture. To best protect one’s interests, one should enter into a Cohabitation Agreement which clearly delineates each parties’ intentions and expectations should the relationship breakdown.

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