Your marital status has some wide-reaching implications that many people often don’t consider when entering into a new relationship. Some of the major implications come in the form of financial consequences. For example, whether you are considered “common-law” or not may affect your benefit and credit payments for income tax purposes. Other areas that may be affected by marriage relate to inheritances and estate taxes, extended health care coverage and even home buying.

Income taxes aside, one of the biggest mistakes that non-married couples make when deciding to move in together or to ‘cohabit’ is that they assume that they have the same legal rights as married couples, which is inaccurate. According to the Family Law Act (FLA), to cohabit is “to live together in a conjugal relationship, whether within or outside marriage.” In Ontario, this is applicable to same-sex couples as well as opposite-sex couples.

One of the major differences that common-law couples need to be aware of involve their property rights. Unlike married spouses, common-law couples have no statutory property rights. Common law couples do not have the same rights as married couples to share the property they bought when they were living together or to divide between them the increase in value of the property they brought with them into the relationship. Generally speaking, whoever has title to the property or ‘owns’ the property in question is the one who is entitled to it upon the breakdown of the relationship. There are certain ways around this general rule, by way of a ‘trust claim’, but these claims are often difficult to prove.

While spousal support and child support rights and obligations apply to both married and unmarried couples, the test for spousal support in cases of unmarried couples is whether the parties have cohabited with each other continuously for at least three years or been in a relationship of some permanence that has resulted in a child. If the period of living together has been interrupted, it will be a question of fact for the courts to determine whether that terminates the right to claim spousal support.

In short, your best defense when you are involved in a common-law relationship, even if everything is going well, is to enter into what is known as a ‘cohabitation agreement.’ This kind of an agreement is similar to a marriage contract and typically contains instructions about how both parties will deal with finances, support and property, as well as arrangements for children, if the relationship ends.

If you have questions about this or any other family law matter, feel free to contact a family lawyer at Radley Family Law for more information. Our team has years of experience helping Ontario families in a wide variety of family disputes and legal issues.