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Dishing the Dirt on the Common Law Status

Divorces can be a messy thing, especially if you have a home that you need to split up. But what about if you’re common-law? Who gets what? How are things split up? And what are the conditions to be considered common-law anyway?

What has to occur for a couple to be deemed “common law“?
Typically, a couple only has to live together for a certain amount of time before they are considered to be common-law in the eyes of the law; different provinces each have different time periods. In Ontario and New Brunswick, couples must live together for three years before being deemed common-law; although in Ontario, if you have a child together and live together, you’re considered common-law no matter the length of time. In Saskatchewan, couples must live together for two years before being deemed common-law.

In Nova Scotia however, it works a little differently. You can register for a “civil union” or “domestic partnership” by filling out a form that costs about $23.00. If you ever want to break the relationship, and the legal status that goes along with it, you can file a Statement of Termination for around $30.

What do I have rights to if we split up?
This is the big question everyone wants to know and again, each province has different rules. In Saskatchewan, common-law partners are considered to be legal partners and as such, the division of property will be based upon a marital status. Each spouse will be entitled to half of the home equity, along with half of the investments beginning from that two-year mark, as well as half of any other assets.

However, all of that is in Saskatchewan. If a common-law partnership breaks up in Ontario, Nova Scotia, or Quebec, couples will walk away only with what was in their name. That is, with the exception of spousal support and child support. Child support especially will most likely have to be paid by the party not entitled to full custody, and spousal support may also have to be paid.

How do I get back money I’ve invested into the home?
If you’ve paid for home renovations, have purchased new appliances, or provided for other grand expenses that you don’t just want to walk away from, and if you’re in one of those provinces that won’t just let you keep half, you’ll have to take the other spouse to court in order to get your money back.

Are there prenuptial agreements for common-law relationships?
Yes, there is a way you can protect your assets and other valuables when you’re in a common-law relationship, but it’s not a prenup. Instead, you can sign a cohabitation agreement, and this can be signed at any point during the relationship. Even though it’s not actually one, a cohabitation agreement works very much like a prenuptial agreement. It will outline what is legally and rightfully yours, and will ensure that you get to keep everything that is yours, such as that equity in the home.

What happens if a partner passes away?
In Ontario, when one common-law partner passes away, there is no automatic transfer of funds, savings accounts, homes, or any other assets. In this province, in order for one common-law spouse to receive these inheritance rights, they must be named as a beneficiary in a will. Otherwise, everything will go to the closest living  blood relative of the deceased.

In Saskatchewan again though, the laws differ. After the second anniversary of the cohabitation date, the surviving spouse will be awarded the inheritance, and the will will be revoked.

It’s never easy to talk to your spouse, common-law or otherwise, about things such as death or dissolution of the relationship. But when you’re common-law, the laws can often become quite murky, and what you think you might be entitled to might surprise you at the very worst time to find out you’re not. Find out what the laws are in your province and then, most importantly, talk to each other about what they mean for you.

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