Do common law spouses have the same rights as married couples?

Everyone knows that marriage is a commitment of love to one another. Fewer people understand the full implications of the legal commitment it entails.

When a married couple divorces, for example, both spouses are required to divide any and all property that they acquired during the marriage equally, including their home, regardless whose name it’s in.

If one spouse dies and leaves nothing to the other in a will, the survivor may elect to take what they would have received as if they had divorced just before death.

But what about couples that live together but aren’t married? Miskin Law lawyers are often asked: Do common law spouses have the same rights?

When it comes to matters such as child or spousal support or child custody, the answer is yes. When it comes to the division of property, however, the answer is no, and people should be aware of the potential pitfalls this presents.

If a common law couple separates, each person is entitled to keep any property that’s in their name. Therefore, if the home is in one person’s name, the other person, strictly speaking, has no right to it. This can lead to gross inequities. The person without title can make a claim to a share of the proceeds of the home by making what’s called a “constructive trust” claim, but they have to go to court to do so.

Similarly, if a common law partner dies without a will, the survivor doesn’t automatically inherit any part of the estate. The only way they may have a claim to a part of the estate is by filing a dependency claim or a claim for unjust enrichment. Again, these can only be pursued through the courts.

Sadly, many most common law spouses become aware of these realities too late, only after their spouse has died, for example.

Miskin Law therefore strongly recommends that everyone in a common law relationship have wills drafted, to ensure the fair distribution of property upon a partner’s death.