Whether or not you are in a common law relationship depends on where you live, the circumstances surrounding the relationship as well as the purpose for the determination. For instance, a person living with someone in a conjugal relationship in Ontario for three years or more would be entitled to spousal support in the event of a separation. This time period is shorter if the relationship is of some permanence and the parties are the natural or adoptive parents of a child. For income tax purposes, the Canada Revenue Agency considers parties that have cohabited with each other for 12 months to be in a common law relationship. The most prudent course of action is to assume that two persons are in a common law relationship as soon as they move in together.

Persons in a common law relationship do not possess all of the rights and entitlements that they would have if married. For example, one of the biggest misconceptions about common law relationships is that the property will be automatically divided equally if the relationship ends, as would be the case for married persons under the Family Law Act. This is not the case. A person in a common law relationship does not possess the automatic right to divide the increase in value of property over the term of the relationship.

It is important to realize that a breakdown in a common law relationship may result in any number of unintended consequences.

Many of these unintended consequences can be addressed in a cohabitation agreement. A cohabitation agreement is a type of domestic contract that clarifies the terms of the relationship, including terms for division of assets and spousal support in the event the relationship comes to an end.

For example, a cohabitation agreement can clarify whether or not each partner will earn an interest in the other partner’s property throughout the duration of the relationship and, if so, on what terms.

Although there is a no legal requirement that persons living together (in a common law relationship or otherwise) enter into a cohabitation agreement, we recommend that partners consider whether a cohabitation agreement would be necessary or desirable before moving in together.

It is important to note that cohabitation agreements apply exclusively to non-marital relationships. If the parties choose to marry, the cohabitation agreement will no longer have effect. The parties will need to renegotiate a prenuptial agreement to govern the terms of their marriage if they wish to do so.

If you are considering moving in with a loved one, or are already living in a common law relationship, and wish to better understand your rights, call us today!