Cohabitation: "Marriage" without the Ring

On behalf of Judith Holzman

I'm often asked, "I have been living with my boyfriend for the past year. We are as good as married, aren't we?"

Common law is common law and married is married. There are automatic rights on marriage, including support and property sharing which are not triggered simply because you live with someone.

The "Law" Of Common Law

There are no rights of support after a year unless the two cohabiting parties are the parents of a child together and there is a relationship of some permanence between them. For example, they are cohabiting but would have to have the child within that year for there to be an entitlement by the one party to seek support from the other. Otherwise, in a common law situation, there is no entitlement to support until the parties have cohabited for a period of at least 3 years. This is very different than the situation for a married couple where there is an immediate right to support based on the fact that a marriage has occurred.

There is, in a common law situation, no automatic entitlement to an equalization of property or to a sharing of property in any form unless the property is held jointly between the parties or both parties' names are on title to the asset.

In fact, there is no significance to the term "living together for a year" beyond the fact that in a common law relationship of 1 year, for Canada Pension Plan purposes, credits can be equalized.

Cohabitation & Contributions To Property

In order for there to be a sharing of assets of any kind, a contribution must be proven by way of money or monies worth, such as renovations done by the one party to the other party's piece of real estate or, in the alternative, proof that the asset was a joint venture and, in effect, a partnership between the cohabiting parties. Contrast this with the automatic entitlement to an equalization of assets and sharing in the growth of assets during the course of a marriage.

Right Of Possession

For married spouses, neither party can lock the other spouse out of the matrimonial home(s) nor mortgage or lien the home without the consent of the other party, regardless of whose name is on title to the home. This is very different from the situation of common law parties where the person who has title to a property can lock the other person out (change the locks), even if it is the common home. They can also mortgage the property without consent.

Again, Married Is Married And Common Law Is Common Law

If you are thinking that you are protected in a common law relationship whether immediately on after cohabitation of after a year, you are wrong. There is no Common Law Act (although I have been often told that it exists). There are no automatic common law rights and entitlements whether immediately on cohabitation or after one year.

This writer would even suggest that one of the many reasons why people choose not to get married (but to live common law) is to avoid many of these automatic entitlements and rights that arise on marriage.

To learn more, contact my office online or call me at 905-303-1070 (Vaughan), 416-977-3050 (Toronto) or 866-233-0945 (Canada toll free).