What are your rights as a common-law partner?

By: Steven Brennan on September 12, 2024

Common-law partnerships have become increasingly popular in recent years, especially in Canada, which leads the G7 nations in the percentage of couples living as common-law.

One possible reason behind this high percentage could be the state of Canada’s housing market, which has couples accelerating their relationships to better afford a home.

But as a common-law partner, your legal rights and entitlements differ significantly from those of married couples. And whether you’re buying a house or not, it’s important to know where you stand between the blurred lines of provincial and federal common-law definitions.

How is a common-law relationship defined in Canada?

In Canada, a common-law relationship is defined as living in a conjugal relationship with a person whom you are not married to, if at least one of the following applies:

You have been living together for at least 12 continuous months
Your partner is the parent of your child, by birth or adoption
Your partner has custody and control of your child, and your child is wholly dependent on them for support

Common law is considered a de facto relationship, meaning that it must be established on a case-by-case basis according to the facts (though there are nuances, particularly with regard to the “12 continuous months” part). This contrasts to marriage, which is de jure, i.e. established by law.

However, that’s just the federal definition. The legal definitions of common law do vary provincially.

For example, in British Columbia, the Family Law Act considers common-law partners as spouses only after two years of cohabitation.

In Ontario, that stretches to three years, although it does go back down to one year if the couple has a child together, by birth or adoption.

What are your rights as a common-law partner?

This discrepancy between federal and provincial common law definitions means that for the purposes of tax, immigration and Old Age Security (OAS) pensions, for example, common law starts after twelve months.

But when it comes to family law, which is governed provincially, you’re generally considered “spouses” after two or three years, depending on where you live.

This can lead to situations where a couple may be considered common law federally, even if they don’t view themselves as such.

Under provincial law, even if you’re considered a spouse, a common-law partner is only entitled to that which they personally own, including property and any debt accumulated during the relationship.

But spousal support, for example, can be claimed after a breakup if the relationship meets the provincial definition of common law, which could be shorter if you’ve got children together.

When it comes to inheritance, common-law partners don’t automatically have any rights here either, unless named in a will. This contrasts with married spouses, who have much stronger legal claims to inheritance, with or without a named will.

How should a common-law couple handle home ownership?

When a common-law couple decides to buy a home, there are some key factors to get clear on.

One of the most important decisions is how you’re going to structure ownership of the home. In the event of a separation, if one common-law partner isn’t named on the title of the property, they will have no automatic rights and could legally be evicted.

That’s why deciding whether you’re going to hold the property jointly or under one name is vital.

As for the mortgage, you’ll want to document all contributions, including the down payment, especially if one partner is paying a greater percentage.

This is where a cohabitation agreement can be useful. This is essentially a legal declaration that outlines how you expect property and assets to be divided if the relationship were to end.

Because common-law relationships are considered de facto under law, what happens to your mortgage, or any other debt or asset depends entirely on the specifics of the relationship.

If a common-law couple splits up, what happens to the mortgage depends on how the property is owned, and what agreements (i.e. a cohabitation agreement) are in place.

If both partners are on the mortgage, they are both legally responsible for the mortgage payments, even after the relationship ends. If only one partner is on the mortgage, that partner is solely responsible for continuing payments, regardless of any financial contributions the other partner made during the relationship.

Learn more: How to break up your finances after a breakup

What happens to your car if you separate?

As with a mortgage, title or any other asset, vehicles will remain the property of whoever is named as owner after a common-law separation.

The person whose name is on the title and registration of the car retains ownership — even if both partners were contributing financially to the purchase, loan or maintenance of the vehicle.

If the vehicle is jointly owned by both partners, that’s a different matter. Upon separation, couples will have to negotiate as to whether the car will be sold (with the proceeds cleanly divided), whether one partner wants to buy out the other’s share, or some other solution.

It is useful to remember that common-law relationships don’t have a legal process like divorce. So, ending one smoothly depends on discussing and documenting your assets, like mortgages and cars, ahead of time.

Federal and provincial laws can treat these relationships differently, especially during a breakup. That’s why tools like cohabitation agreements are helpful to protect everyone’s interests. 

As a common-law partner, it might feel like you’re walking a tightrope when it comes to protecting your rights. But with the right information and a solid grasp of the laws, you can navigate and handle this journey with confidence.