Common Law Spouses, your Property and the Law?

May 23rd, 2013 by Meliha Waddell


If a friend lives with me for many years, could s/he claim that s/he is my common law spouse and, as a result, be entitled to half my property?


There are two questions that need to be answered in order to properly respond:

  • What is a common law spouse?
  • If I have a common law spouse, is my s/he entitled to half of my property?
  • Whether or not a person is in a common law relationship is a question of fact that needs to be answered prior to determining one’s rights and obligations in a relationship. In Ontario, what is referred to as a “common law” relationship is defined by section 29 of the Family Law Act. It is defined as a relationship in which two people, who are not married to each other, cohabit continuously for a period of not less than three years; or are in a relationship of some permanence if they are the natural or adoptive parents of a child.

    If there are no children involved, simply living under the same roof with a friend, in a platonic relationship, for three years or more would not trigger the obligations, which arise between common law spouses. The case of Stephen v. Stawecki is instructive and provides that the entirety of the couple’s circumstances must be taken into account. There must be an demonstrated intention to actually be in a conjugal relationship and you must hold oneself out as being in that relationship with the other person. If you have attended gatherings with family and friends as “a couple”; if you share finances; if you cook and meet for your meals together; if you discuss moving forward in your life together as a couple for a period of three years or more, then there may be cause to consider whether you are in a common law relationship. If this is the case, you should contact a lawyer to discuss your possible rights and obligations. However, simply with a roommate, without these other indicia of a conjugal relationship, is likely not sufficient to trigger the obligations which arise between common law spouses.

    Common Law Spouses, your Property and the Law?
    This said, even if you are in a common law relationship, the statutes do not permit a right to share in the possession or value of property of the other spouse in the way that is associated with legally married spouses. Common law spouses do not have a “matrimonial home”; they do not have the right to share in the increase of your RRSP’s, pensions or investments. To learn more about “matrimonial home” watch this video. This said, they can make a complex legal argument that they are entitled to share in the increase in the value of a particular asset if they can show that you were “unjustly enriched” by the increase in value, due to their direct and substantial contribution to your asset. A successful claim of this sort is the exception and not the rule.

    Common law spouses may have the right to spousal support, however, the entitlement to spousal support is made on a case-by-case basis, considering the length and nature of the relationship, as well as the means and needs of each spouse. To read our blogs on spousal support click here.

    If you are concerned that you may be in a situation which may trigger the right to spousal support, or a claim for unjust enrichment due to your spouse’s contribution to an asset, you should consult with a Family Lawyer as there are ways, such as negotiating a cohabitation agreement, which may help protect you in such circumstances.

    For more information on Common Law Spouses and Relationships, or if you need a Toronto Family Lawyer, please contact one of our Toronto Family Lawyers at Devry Smith Frank at Toronto Family Lawyers.

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