Common Law Breakup? Here Are 10 Things You Should Know About Your Legal Rights
Breaking up is never easy, but when you're in a common law relationship, the legal landscape can feel especially confusing. Unlike married couples who have clearly defined divorce processes, common law partners face a different set of rules and challenges when their relationship ends.
If you're navigating a common law breakup in Ontario, understanding your legal rights is crucial. The decisions you make now could impact your financial future, your living situation, and your relationship with your children for years to come.
Here are 10 essential things every common law partner should know about their legal rights during a breakup.
1. You're Not Entitled to Property Division Like Married Couples
This might come as a shock, but in Ontario, common law partners don't have the same property rights as married spouses. When married couples divorce, they typically split their matrimonial property 50/50 under the Family Law Act. Common law couples? Not so much.
If you've been living together for two years or have a child together, you're considered common law partners under Ontario law. However, this doesn't give you automatic rights to your partner's property or assets acquired during the relationship.
Each person generally keeps what's in their name. So if your partner bought the family home and only their name is on the deed, you may have no legal claim to it, regardless of how long you lived there or how much you contributed to household expenses.
2. Joint Property is Divided Based on Ownership Shares
When property is owned jointly: meaning both names are on the deed or title: things get more straightforward. The legal presumption is that you own the property in equal shares unless you can prove otherwise.
However, if one partner contributed significantly more to the purchase price, down payment, or ongoing expenses, a court might divide the asset unequally. You'll need solid documentation to prove these contributions, so keep those receipts and bank statements.
For jointly owned vehicles, bank accounts, or investments, the same principle applies. Joint ownership usually means equal ownership, but evidence of unequal contributions can change this calculation.
3. You May Have Rights to Property Through Constructive Trust
Just because your name isn't on the deed doesn't mean you're completely out of luck. Ontario courts have recognized something called "constructive trust" in certain situations.
If you made significant contributions to a property: whether financial contributions like mortgage payments or non-financial contributions like renovations, property maintenance, or homemaking: you might be able to claim a beneficial interest in that property.
The key is proving that your contributions enriched your partner at your expense, and that it would be unfair for them to keep the entire benefit. This is complex legal territory that requires strong evidence and typically professional legal help.
4. Spousal Support is Available for Common Law Partners
Here's some good news: common law partners in Ontario can claim spousal support under the Family Law Act. If you've been living together for three years or have a relationship of some permanence with a child together, you may be entitled to support.
The court considers factors like the length of your relationship, your roles during the relationship, any economic advantages or disadvantages resulting from the relationship, and your financial circumstances after separation.
Support isn't automatic: you need to apply for it within two years of separation. The amount and duration depend on your specific circumstances, including your income, your partner's income, and your ability to become financially self-sufficient.
5. Child Support and Custody Rights are the Same
When it comes to your children, common law and married parents have identical rights and responsibilities. Both parents have equal rights to custody and access, and both are responsible for child support according to the Federal Child Support Guidelines.
Child support is calculated based on the paying parent's income and the number of children. It's not negotiable: it's a right that belongs to the child, not something parents can simply agree to waive.
Custody and access arrangements focus on the best interests of the child. The fact that you weren't married doesn't impact your parental rights or responsibilities in any way.
6. You Need to Address Shared Debts Carefully
Just as assets don't automatically get split, debts also remain with whoever incurred them. If your partner racked up credit card debt in their name only, you're not responsible for it after separation.
However, joint debts are different. If you co-signed for a loan, mortgage, or credit card, you remain legally responsible for the entire debt even after separation. Your creditor doesn't care about your relationship status: they can pursue either or both of you for the full amount.
The best approach is to close joint accounts immediately and divide or transfer balances according to your agreement. Get everything in writing to avoid disputes later.
7. Cohabitation Agreements Can Protect Your Interests
The best time to protect your interests was before you moved in together, but it's not too late now. Cohabitation agreements (similar to prenuptial agreements for married couples) can clarify property rights, support obligations, and other important matters.
While you can't create a retroactive agreement about property already acquired, you can still make agreements about ongoing financial arrangements, support, and how to handle future property purchases.
These agreements must be properly drafted and executed to be enforceable. Both parties need independent legal advice, and the agreement must be fair and not unconscionable.
8. You Have Limited Rights to the Family Home
If you're not on the title and can't prove a constructive trust claim, your rights to remain in the family home are limited. Unlike married spouses who have special rights to the matrimonial home, common law partners generally can't force their partner to leave or prevent the sale of a property they don't own.
However, if there are children involved, the court might make temporary orders about who can live in the home while custody arrangements are being sorted out. The children's best interests can override property rights in some situations.
If you're facing domestic violence, you may be able to get an order allowing you to remain in the home temporarily, regardless of ownership.
9. Benefits and Insurance May End Immediately
Unlike divorce, which often includes provisions for continued health and life insurance coverage, common law separation usually means immediate loss of benefits. Your partner's workplace health insurance, life insurance beneficiary status, and pension survivor benefits typically end when you separate.
Review all insurance policies and benefits immediately after separation. You may need to secure your own health coverage and update beneficiaries on your own policies and accounts.
Some employers offer continued coverage for a period after separation, but this varies widely. Don't assume you're covered: check and make alternative arrangements if necessary.
10. Documentation is Everything
In common law breakups, documentation becomes crucial. Unlike married couples who have a clear legal framework, common law partners often need to prove their contributions, agreements, and arrangements.
Keep records of all financial contributions to joint property or expenses. Save text messages, emails, and other communications that show agreements about finances or property. Document any improvements you made to your partner's property.
If you're making arrangements about support, property division, or parenting, get everything in writing. Verbal agreements are difficult to enforce and memories fade over time.
Get Professional Help When You Need It
Common law breakups involve complex legal issues that can have lasting financial consequences. While some couples can work out arrangements amicably, many situations require professional legal assistance.
At OMNI LAW GROUP, we understand the unique challenges facing common law couples during separation. Our family law team has extensive experience helping clients protect their interests and navigate the complexities of common law breakups.
Whether you need help understanding your property rights, negotiating a separation agreement, or pursuing spousal support, we're here to provide the guidance you need. Don't let confusion about your legal rights cost you financially or emotionally.
Contact us today to discuss your situation and explore your options. Every case is different, and understanding your specific rights and obligations is the first step toward moving forward with confidence.