What happens when you have a live-in partner but are still married?


Ontario law around blended families

“I’m still married, but now I have a live-in girlfriend. We both have kids. What does this mean, legally speaking?”

Whenever a married couple separates – especially if there are young children involved – it’s best to document any custody and parenting arrangements, even if they’re only to be used on an interim basis. A memorialized (documented) separation agreement will lay out what happens with custody of and access to children, their primary residence and what should or should not be paid in support. Other issues typically dealt with in a separation agreement will be who has rights to the marital home, how finances are to be arranged in the new marital status, and, on a final basis, who gets what property.

Couples separating amicably may not think they need the formality of a separation agreement. However, schools, banks and healthcare providers may need some kind of formal documentation in changed or fluid custody situations. A formal agreement which is made when things are going well can benefit everyone involved when issues arise or when one former spouse takes on new responsibilities – or enters into a co-habitation situation with a new partner.

The trickiest issue may be the occupation of the marital home. The mortgage, property taxes, utilities and maintenance will have to be paid, regardless of who is living in the home. And the value of the home accrues to both partners in a marriage even if it is owned (on the deed) by one person. Both people in a married couple have a right to possession of the marital home until this is changed by court order or agreement.

Children need certainty and stability, and to achieve this, parents need to collaborate in parenting. A written agreement can lay out rights and responsibilities for parents. Just as fences can make for good neighbours, a good separation agreement can help a separated couple to avoid conflict and unintended consequences.

Introducing a new partner into the mix

Embarking on a common-law relationship before the previous marriage has been dissolved is fraught with potential problems, especially if there are unresolved issues from the marriage. A soon-to-be ex-spouse could take possession of the matrimonial home; support obligations, especially if they change, can disrupt financial plans; and who will be allowed to pick up the kids from school or daycare?

A cohabitation agreement with a common-law spouse can be a good way to help define rights and obligations of everyone involved. What role will the new spouse play in the disciplining of children? What contribution will a common-law spouse make to the household expenses? If the new partner is also still legally married, what impact could this have on the household?

(The truth is that, especially when children are involved, having a detailed conversation about just how the new, blended household will work is a good idea, regardless of whether one or both partners is still legally married or not. Setting realistic expectations and guidelines at the outset can prevent a lot of distress later.)

Common-law couples and married couples are not created equal in law. (So far, there are no special provisions in law to accommodate polyamory relationships, which makes it extra-important to document agreements in those cases.) Property rights apply to married couples, but not to common-law couples. Child and spousal support can apply to common-law couples, even if you don’t have biological or adopted children together.

The bottom line? When separating, it’s always a good idea to document any arrangements right from the start. When bringing a new partner into the situation prior to a final divorce, especially when one or both partners has children from a previous relationship, documentation becomes even more crucial.


ASK A LAWYER: What do common-law partners get in a split?


Timothy N Sullivan Ottawa lawyer answers questions

“My common-law partner just cheated on me, so we’re breaking up. Will he still get half the house, even though I’m the one who put up the down payment and paid most of the mortgage?”

It depends. If the house was jointly owned – so both names are on the deed – the likelihood is that he will, in fact, get half the house, regardless of his behaviour or how much more you paid over the course of the ownership.

When two people are married, certain property rights kick in.  On separation or death, a spouse is allowed to ask the court for an equalization of net family property. This means that the parties split half of the growth of the value of assets from the date of marriage to the valuation date which is either the date of separation were the date of death.  (There is a third opportunity to equalize but it’s rarely triggered.)

However, common-law spouses in Ontario do not enjoy that same right to equalize net family properties.

When common-law parties separate now they are entitled to receive their own property without sharing its value unless it was a jointly owned property.  This applies to property like real estate or a bank account. A common-law spouse is not allowed to receive the value of the other spouse’s property by right. A common-law spouse is only entitled to the other spouse’s property if it is given or inherited or there is some other voluntary and conscientious transfer of title.

The exception to the common-law rules

The exception to this is something called a constructive trust or an unjust enrichment.

The unjust enrichment is the claim and constructive trust is the remedy.

A common-law spouse, if it turns out that he or she contributed to the spouse’s property by either working the land or building a house or making a renovation to a building or paying on the mortgage, can claim for a return of the benefit imparted to the owner. The test for this is that a defendant must have had a benefit to the plaintiff’s detriment without a legal reason to benefit.  A legal reason for the benefit may be that the labour was paid in wages or the use of the property was paid in rent.  It does not apply only to common-law spouses. The same claim and remedy are available to people outside of a common-law relationship.  A brother who helps a sister with a mortgage or help build a house for a neighbour, an unjust enrichment can arise.

Taken to another level, common-law spouses are now beginning to benefit with what has come to be called a “joint family venture.  This legal concept essentially is to make a common-law relationship somewhat equivalent to a marriage in terms of property rights.  The court has identified very similar traits in the joint family venture as is seen in the equalization of net family property.

There are certain drawbacks to this approach because there are no identifiable dates from which to start the calculation, but a separation date is usually as clear as in the case of a marriage.


The bottom line

For most common-law couples who jointly own real estate or other substantial assets, they will in fact be split 50-50 if the matter goes to court. In fact, it is not really a legal dispute to take one’s own property when a relationship ends.  There are situations in which this may not be automatic.