Common Law vs. Married: Property Rights

Many people are under the assumption that if they live with an individual in a common law relationship for a certain amount of time and contribute to a home that they develop an ownership to the property.  This is not the case!  If you are not on title or there is no up-to-date contract in relation to the home/property then the person not on title is not entitled to anything. 

Married couples have rights to ownership even if they are not on title, common law partners in Ontario have no rights to seek a division of property rights or assets.  Each person, in a common law relationship, has the right to keep what is in their name and if there are joint ownerships it must be sold and then the profit split.  Many lawyers will suggest that you do not pay for things (cars, homes, loans, etc) in a common law relationship unless your name is attached to it.

There are many couples that believe that because they have been together for a certain amount of time that the home they live in becomes the Matrimonial Home, this is not the case unless you are legally married. During divorce proceedings, of married couples, you get a credit towards any item that you brought into the marriage that you owned before you got married with exception to the home.  The home will be split equally even if owned by one person before the marriage.  This does not happen with common law couples, the “matrimonial home” is considered the same as any other item and if it is only in one person’s name in the relationship when the relationship ends the person on title has full ownership of the home.  This applies to common law couples who have been together for years and have equally paid the mortgage, utility bills and renovations/upgrades to the home.  If you are not on the title of the home you get nothing when the relationship ends.

The Ontario Family Law Act gives possessory rights to married couples, meaning that both people in a marriage can stay in a home even if only one person’s name is on the title of the property.  The home cannot be sold without signatures by both parties agreeing to the sales terms.  None of this applies to common law couples.  For common law couples, after a relationship ends you only have rights to stay in the home if your name is on title and if you refuse to leave the person on title can legally evict you.  You have no say on whether the home is sold and what the sales terms are; even if you have invested in the home over the years.

Another issue that comes up with Common Law relationships is you have no property rights with regards to your partner’s estate.  If your partner passes away without a will and you are not on title, you will be treated as though the relationship never existed.  Any property that was owned in the deceased partners name will be sold and the proceeds will be held in trust by the estate lawyer until other family is reached and this can take years and years to settle.

If you are in a common law relationship and sharing a home but you are not on title, consider the legal and financial ramifications this could have for you in the future.  If you would like more information on your property rights in a common law relationship please call HomeLife Emerald Realty Ltd. at 705-424-0770 and if we cannot answer your questions we can put you in touch with a lawyer who will be able to assist you.

Bill Forsyth
Sales Representative/Owner

Jenna Forsyth
Broker of Record/Owner