In common law, are you entitled to the same as if you were married?

“If you live in a ‘common-law marriage,’ are you entitled to the same support and property division as if you were legally married?”

In Ontario, the rights of common-law (including same-sex) partners and married spouses on the breakup of their relationships are not always the same.

The law makes no distinction between married and unmarried couples for the purposes of child support. The rule is that child support is the right of the child, regardless of whether or not the parents of the child are married.

Both the Divorce Act (Canada) and the Family Law Act (Ontario) provide that married spouses are responsible for each other’s spousal support on separation in most circumstances when there is need and an ability to pay. There is no minimum time period for which the spouses must be married in order to give rise to a support obligation. For common-law and same-sex partners, the Family Law Act provides that an individual may be responsible for the support of his or her ex-partner if the partners have a child together or if they have cohabited continuously for a period of not less than three years.

The Family Law Act requires that the value of property accumulated during marriage, with a few exceptions, shall be divided equally between spouses on separation. This is regardless of whether or not there was an equal contribution to the acquisition of property by the spouses. On the other hand, there is no presumption in law that the property of non-married partners should be divided equally on separation. Property division will depend on each partner’s financial contribution to the relationship and in whose name the property was purchased.

Ken Nathens is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family-law issues. Ken has experience in all aspects of divorce and Ontario family law and devotes much of his time to assisting clients with custody and access disputes.