Separation for Common-Law vs Married Couples: Facts and Myths

by Meredith Rady, Family Lawyer at Miller Thomson LLP

What is the difference between being common-law or married when it comes to separation? In this article, we dispel some common myths and misconceptions about how common-law and married couples are treated in Ontario when they separate.

MYTH: Common-law spouses are treated the same as married couples on separation.

Facts: Common-law couples are not in a legally-recognized marriage. When common-law couples separate, there are some differences in the way the law will apply to them compared to married couples.

MYTH: Common-law spouses are entitled to an equalization payment on separation.

Facts: When married couples separate, they are entitled to share in the increase in the value of their property that accumulated during the marriage. This is typically determined by adding up the value of each spouse's property less any debts on the date of separation and then subtracting the value of their property less any debts on the date of marriage and factoring in any recognized exclusions. This is called a "net family property". The spouse who has the higher net family property will pay to the other half of the difference between the net family properties. This is called an equalization payment.

This is not the case for common-law couples. When a common-law couple separates, there is no automatic right to share in wealth generated during the relationship. Instead, the presumption is that each person keeps the property they brought into the relationship, as well any increase in value over the course of the relationship or new property acquired during the relationship. A common-law spouse may be able to argue that they should get some share of their spouse's property if they can show that there was "unjust enrichment".

MYTH: Common-law spouses do not have to pay spousal support.

Facts: Both common-law and married spouses may have an obligation to pay spousal support depending on their situations. There may be a requirement to pay spousal support for a common-law couple who has been living together continuously for a period of three years or more or for those who have been in a relationship of some permanence if they have a child or children together.

MYTH: Common-law spouses are both entitled to stay in the family home after separation.

Facts: Married spouses are permitted to remain in the matrimonial home after separation, regardless of who is on title. A married spouse cannot kick the other person out of the house and both people can stay in the home until they are divorced, the house is sold or transferred, or they make an agreement or obtain a court order saying that one person has to leave.

This is not the case for common-law spouses. If one common-law spouse solely owns the family home, they can sell it or mortgage it without the other's permission. The non-titled spouse does not have an automatic right to remain in the family home on separation.

These are just some of the ways that married couples and common-law couples may be treated differently upon separation. If you are looking for a family lawyer to help you sort through some of these issues, please reach out so we can discuss your situation and the options that may be available to you.