Distilling the myths about rights of common law partners

It is often mistaken that common law partners are afforded the same rights as married spouses. Some separating common law partners are unpleasantly surprised that the law in Ontario does not treat them the same as married spouses. Unlike a married spouse, a common law partner in Ontario does not have a right to the equal division of assets, commonly known as a 50/50 split.

Usually, you and your separating partner are only entitled to assets that you own in your names. If you jointly own assets with your partner, such as a home or a bank account, then you would usually be entitled to an equal split of the value of the asset when you separate.

If you or your partner have been living in a home which only one of you owns, then the partner that legally owns it (whose name is on title) gets to keep the home and the non-owning partner is not entitled to any portion of it. However, there is an exception to this rule. If you and your partner have lived together for three or more years, either you or your partner may have an unjust enrichment or constructive trust claim such that you or your partner may be entitled to more than their normal share.

Common law partners are afforded one right that is given to married spouses: the right to claim spousal support. However, unlike a married spouse whose right to claim spousal support is given immediately after they are married; you and your partner must have continuously lived together in a conjugal relationship for three years, or have a child together and live together in a relationship of some permanence in order to be considered common law partners for the purposes of support.

If you and your common law partner are separating, our family law team can help. Contact us today for a free legal consultation.