Living together is a common step for couples to take. After all, once you’re spending most of your time together, why not share a living space? You might not be ready to get married just yet, but that doesn’t mean you can’t combine your lives in a more casual way.
The legal implications of living together probably haven’t crossed your mind. Most people who enter into a domestic partnership or common-law relationship do so without considering the issues that could come up in the future. That’s understandable, but it could be a mistake. If you are living with your partner, you need to understand all of the legal implications, in addition to what it means for your relationship. Being aware of these possibilities now means they’ll be easier to deal with if and when any problems arise.
Top 10 Legal Facts About Domestic Partnership
Many people don’t even realize that there are legal implications to living with your partner. After all, you’re not married, so why should the law care about your relationship? The fact is, the law cares a lot about your relationship! The evolution of Canadian common law has led to many regulations around domestic partnerships as disputes have gone through the family courts. These cases have set precedents that help the courts outline the rights and limitations of domestic partnerships as opposed to marriages. Here are the top 10 legal points you need to know before you move in together.
1. In the eyes of the law, you are not married.
This seems like a no-brainer – of course you’re not married! But you might be surprised at how often this mistake is made. In Ontario, a domestic partnership is often referred to as “common-law marriage,” which leads many people to believe they have the same rights as married couples after they’ve been living together for a certain amount of time. While the courts do recognize some rights for couples who cohabitate, they do not recognize domestic partnerships in the same light as marriages.
2. You could be on the hook for spousal support if you break up.
Spousal support? But we just said cohabitation isn’t the same as marriage! That’s true, but this is one of the areas where the law in Ontario recognizes the rights and privileges of a cohabitating couple. If you and your partner have cohabitated for at least three years, or if you live in what is called a “relationship of permanence” and have children together, the higher-earning partner may be required to pay spousal support to the other partner. This is more likely if a couple’s financial agreement included one partner staying at home with the children while the other one worked outside the home.
3. You’re aren’t necessarily entitled to a division of assets.
Wait, we just said one of you may have to pay spousal support, and yet you aren’t entitled to asset division if you break up? Nobody ever said the law was consistent or logical. If you decide to break up, any property that you own jointly will be shared equally and sold if necessary to split the proceeds. However, if you are not named as an owner of the asset (house, investment account, etc.), you will not be entitled to a share of its value. You can file a claim in court for a share of your partner’s assets, but there’s no guarantee it will work out in your favour.
4. You can claim unjust enrichment to receive a share of any assets that are not in your name.
Just because you’re not automatically entitled to a share of your partner’s assets doesn’t mean there is no recourse. “Unjust enrichment” refers to a situation in which one partner made significant contributions to the value of an asset held by the other partner. For example: Your partner owns a house that you move into. You haven’t been added to the title, but you’ve helped with the mortgage payments and remodeled the bathrooms, increasing the equity in the home. This means that if your partner were to sell the house after you break up, the profit would be much larger than it would have been without your contribution. Claiming unjust enrichment with the court may lead to either monetary compensation or an interest in the property.
5. You are still required to pay child support.
Your status as a parent is completely separate from your marital status. No matter whether you’re married or not, you’re still required to support your children financially. If you break up, the fact that you weren’t legally married will not make any difference in calculating child support payments.
6. You may be entitled to share in CPP. Here are the forms.
If your partner passes away and you are between the ages of 60 and 64 and in a low income bracket, you may be eligible to receive survivor benefits. You may also be eligible for credit splitting, which means you can divide the CPP contributions you both made during the time you lived together.
7. Your partner can make healthcare decisions for you.
One concern that couples have about not being legally married is what happens if one of you becomes incapacitated and unable to make their own medical decisions. This is an area where the law is on your side – if you’re unable to make healthcare decisions for yourself and you haven’t appointed a power of attorney, your partner can make these decisions on your behalf.
8. You need to inform the CRA of your marital status.
If you and your partner are cohabitating, the CRA needs to know about it. Whether you’ve just moved in together or you recently split up, once your living situation has been different for 90 consecutive days, you’ll need to notify the CRA of the change in your status.
9. You have no property rights if your partner dies without a will.
Just as you wouldn’t be entitled to asset division if you break up, you have no automatic inheritance rights if your partner passes away without a will, or without having named you as a beneficiary. Once you make the decision to move in together, one of the first things both of you should do is to update your wills. However, in the event of your death, your partner will be entitled to any property that you own jointly.
10. You should not enter into a domestic partnership without a cohabitation agreement in place.
If you were surprised by any of the points we’ve listed here, then you could be vulnerable should things go sideways. A great way to protect yourself and your partner is to draft a cohabitation agreement with the help of a lawyer. Think of this as a sort of prenuptial agreement without the nuptials – it’s just a smart way to prepare for any changes in your circumstances down the road.
Talk to Galbraith Family Law About Domestic Partnerships
Are you getting ready to move in with your partner? Already living together and worried about a break up? Contact Galbraith Family Law to talk about setting up a cohabitation agreement or resolving issues that have already arisen. In Newmarket, we can be reached at (289) 802-2433, and our Barrie office is at (705) 302-1102. We can help.