Division of Property: Married Versus Common Law

Married? Common law?…What’s the difference?

Family law in Ontario predominantly deals with the rights and responsibilities of children, parents, spouses, and common law partners.

Basically, it is composed of all the laws that dictate the rules governing family relationships.

It is important to know that ¬†family law is applied equally to same-sex and opposite-sex couples in Ontario. This gives all couples the opportunity to live together as common law, to marry, and to have or adopt children. Let’s first be clear on what we mean exactly by “common law” and “marriage” and what the differences are regarding the law here in Ontario.

Once you are legally married in Ontario, the law considers your new partnership completely economically equal. This means that if you were to divorce, the value of the property you come to possess while you are married, as well as the increase in the value of the property you brought into your marriage would be split 50/50 between both persons in the marriage.

For example, let’s say I inherited my grandfather’s cottage before I get married. I then have a 10 year marriage, but am now filing for divorce. According to the laws of our marriage then, my spouse does not get 50% of the cottage (because I acquired this property before the marriage), but they are entitled to 50% of the increase in the value of the cottage gained over the duration of our marriage.

Additionally, each spouse has an equal right to remain living in the home they resided in together, regardless of whose name it is in.

Although married and common law spouses share many of the same rights and responsibilities, when it comes to the division of property the above noted rights of married couples does not apply. Since common law couples are not married, they do not have the legal responsibility to equally share the value of property gained during the relationship.

So then what constitutes a common law relationship?  This can be a bit confusing as different areas of the legal system define common law differently. In the case of family law in Ontario you are automatically considered common law spouses if :

– you live and have a child together,

-if you have been living together for at least three consecutive years.

As there is no formal or legal process to begin a common law relationship, there is also no formal or legal process to end it. If you do not have enough money to support yourself after the break-up of a common law relationship,you may ask your spouse to pay support. The amount would be settled between you and your spouse through negotiation, collaborative law, arbitration, or mediation. If decisions regarding support cannot be made through these methods, you can advocate for support in a court process where a judge will consider your case.

Author: Leanne

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