Common Law vs Married in Ontario: Key Legal Differences Every Couple Should Understand

In Ontario, the legal rights and obligations of couples differ significantly based on whether they are married or in a common law relationship. While many people assume that living together creates the same rights as marriage, this is not true under provincial law. Understanding the distinction between common law vs married in Ontario is crucial, especially in the event of separation. This guide breaks down their differences in property division, spousal support, child custody, and legal agreements to help couples make informed decisions about their relationships and legal responsibilities.

Defining the Relationship: Common Law vs Married

Married Spouses

• Marriage is formalized and registered with the government
• Governed by both the Divorce Act and Family Law Act

Common Law Spouses

• Live together in a conjugal relationship without legal marriage
• Recognized after cohabiting for 3+ years, or 1+ year with a child
• Governed only by the Family Law Act

Property Division Upon Separation

Married Couples: Equalization of Net Family Property

Married spouses benefit from an automatic property-sharing regime. Upon separation:

• Each spouse’s net worth during the marriage is calculated
• The higher-net-worth spouse pays an equalization payment
• Certain exclusions apply (e.g., inheritances kept separate)

Common Law Couples: No Automatic Property Rights

Common law partners do not share property by default. To claim property:

1. The claimant must prove unjust enrichment or constructive trust
2. Evidence must show significant contribution to the other’s assets
3. Court intervention is often necessary

Note: This makes property claims in common law separations more complex and less predictable than for married spouses.

Spousal Support: Similar Legal Tests

Support Rules for Both Relationship Types

Despite differences in property rights, spousal support entitlements are similar for both common law and married spouses:

Factors That Influence Support

• Length of relationship
• Roles during the relationship
• Income disparity and financial needs

Parenting Rights and Child Support

Equal Treatment Regardless of Marital Status

Ontario family law treats both married and common law parents the same regarding children. Key statutes include:

• Children’s Law Reform Act
• Family Law Act

Key Considerations

• Custody and parenting time decisions are based on the best interests of the child
• Child support follows the Child Support Guidelines

Marriage Contracts vs Cohabitation Agreements

What Are They?

Both are legal agreements that outline financial terms if the relationship ends:

• Marriage Contracts: Also called prenuptial agreements
• Cohabitation Agreements: Tailored to common law relationships

Best Practices

1. Start with full financial disclosure
2. Seek independent legal advice
3. Sign well in advance of marriage (if applicable)

As common law and married couples have different entitlements under Ontario law, each agreement must reflect those distinctions carefully.

FAQs About Common Law vs Married in Ontario

1. When is a common law relationship legally recognized in Ontario?

After three years of continuous cohabitation, or one year if the couple has a child together.

2. Do common law spouses split property equally upon separation?

No. There is no automatic property division unless a claim for unjust enrichment or constructive trust is proven.

3. Are common law partners entitled to spousal support?

Yes, if they meet the minimum cohabitation period or have a child together and meet the legal tests.

4. Can common law couples create a legal agreement to protect their assets?

Yes. A cohabitation agreement can outline financial terms and help avoid disputes upon separation.

5. Does having children change how the law treats common law couples?

For child custody and support, yes—but not for property rights unless specific legal actions are taken.

Conclusion

Understanding the legal differences between common law vs married in Ontario relationships is critical for anyone entering a serious partnership. While spousal support and parenting responsibilities are treated similarly, property rights are not. Married couples benefit from automatic property division, whereas common law partners must pursue equitable remedies in court. Whether you’re married or living common law, the best protection is clear legal planning, supported by professional advice and formal agreements.