If you’re in a common law relationship and own a home, you may wonder: What happens to my property if we break up? Unlike married couples, common law partners in Canada don’t automatically share property rights, which can leave many people vulnerable during a separation. Understanding your rights – and taking steps to protect your house – can save you from emotional stress and legal uncertainty later.
Whether you’re already living with your partner or planning to move in, this guide will walk you through how to protect your house in a common law relationship, how property division works during separation, and how a cohabitation agreement can help.
Can I Protect My House in a Common Law Relationship?
The short answer is yes – but only if you plan ahead.
In a common law relationship, owning a home doesn’t automatically guarantee it will stay yours after a separation. If your partner contributes to mortgage payments, renovations, or upkeep, they may be able to make a legal claim to the property – even if their name isn’t on the title.
To protect your home:
- Keep your finances and property clearly separate
- Avoid jointly registering title unless you intend to share ownership
- Consider a cohabitation agreement that outlines property rights
Property Division in Common Law Separations
Common Law Property Division
Unlike married couples, in some provinces, common law couples are not automatically entitled to equal property division upon separation – unless provincial law says otherwise (as it does in British Columbia, for example). In most provinces, you only keep what’s legally in your name. But that doesn’t mean you’re safe from a claim.
Your partner may still try to claim a share of your home using legal doctrines like:
- Constructive trust: arguing they deserve a share because they contributed to the home
- Unjust enrichment: claiming it’s unfair for you to keep the home without recognizing their contributions
This is where things get complicated – and costly. A common law separation can lead to litigation if you don’t have a clear agreement in place.
Navigating Separation as a Common Law Couple
Common Law Separation Key Considerations
A common law separation doesn’t require a formal divorce, but it can still be emotionally and financially complex. You’ll need to sort out:
- Who stays in the house
- How shared debts and assets are divided
- Whether spousal support is owed
- What happens with pets, children, or joint purchases
Even if you’re not married, the legal implications of separation can be significant. A proactive approach is your best protection.
Creating a Common Law Separation Agreement
If you’re separating, a cohabitation agreement can help clarify the division of property, responsibilities, and future obligations. You can create one through lawyers or online platforms like Jointly, which offer a guided process to make these agreements accessible and affordable.
This is especially useful if you’re trying to resolve who gets to keep the house or whether one person should buy the other out if the relationship ends. Your cohabitation agreement will set out the specifics, and you can use it for a roadmap if you separate. If you don’t have a cohabitation agreement, you will have to start building a separation agreement from scratch. As you can imagine, it is typically far easier to make an agreement at the beginning of a relationship than it is at the end, when tensions are running high and trust may be in short supply.
Questions About Common Law Relationships and Property
What Happens to Debt in a Common Law Separation?
Debt can be just as tricky as property. Common law partners are typically only responsible for debts in their own names – but shared debt (like a joint credit card or line of credit) must be addressed.
Even if only one partner’s name is on a debt, courts can sometimes assign responsibility based on who benefited from the expense. That’s why clear documentation and agreements matter.
Are Common Law Partners Entitled to Each Other’s Property?
In most provinces, the default is no – common law partners do not have a legal claim to each other’s property unless they:
- Own it jointly
- Have a cohabitation agreement stating otherwise
- Successfully prove a contribution under unjust enrichment or constructive trust
This is a major difference between common law and marriage, and many Canadians don’t realize it until it’s too late.
The Role of Cohabitation Agreements
What Is a Common Law Agreement?
A common law agreement, also known as a cohabitation agreement, is a legal document that outlines each partner’s rights and responsibilities while living together. It can include:
- Who owns which property
- How future property or assets will be divided
- Whether spousal support will be paid upon separation
- How debts and household expenses are handled
This kind of agreement is essential if one partner owns a house and wants to protect it.
How a Cohabitation Agreement Can Protect Your Assets
Without an agreement, your partner could potentially claim a share of your house – even if they didn’t contribute much financially. With an agreement, you can:
- Establish that the house is your sole property
- Exclude your home from future division
- Set clear expectations about contributions and ownership
This can prevent confusion, resentment, and expensive legal battles later. Think of it as homeowner’s insurance for your relationship.
Understanding Common Law Relationships
What Is Common Law?
A common law relationship is when two people live together in a marriage-like relationship without being legally married. Each province defines common law differently:
- Ontario: 3 years of cohabitation (or less if you have a child)
- British Columbia: 2 years of living together
- Alberta: 3 years or a child together
Living together for the required time grants certain legal rights – but not always the same as marriage.
Do Common Law Partners Have Rights?
Yes – but they’re limited in some provinces, especially when it comes to property. Common law legal rights usually include:
- Potential entitlement to spousal support
- Ability to seek court recognition of contributions to property
- Parental rights and obligations, if you have children
But common law partners do not automatically share property, unless you’re in a province like BC where the law has evolved to be more inclusive.
Key Differences Between Common Law and Marriage
Common Law vs Marriage in Canada
Here’s a quick comparison:
| Issue | Married Couples | Common Law Couples |
| Property division | Automatic equal division in most provinces | Automatic sharing depends on your province |
| Spousal support | Usually available | May be available, depending on duration and needs |
| Separation process | Divorce required | No formal divorce, but separation agreements help |
| Legal status | Legally recognized across Canada | Varies by province; may require proof of cohabitation |
Understanding the difference between common law and marriage is crucial for protecting your financial future – especially if homeownership is involved.
Jointly for Your Cohabitation Needs
At Jointly, we help couples protect what matters most – like your home, savings, and peace of mind. Our platform allows you to create a cohabitation agreement online, together, for a fraction of the cost of hiring lawyers.
Why choose Jointly?
- Built by Canadian family lawyers
- Affordable and accessible
- Clear, guided process in plain language
- Designed to help you avoid unnecessary legal battles
Whether you’re moving in together or already cohabiting, we make it easy to take a proactive step toward protecting your future. Start your agreement today.
I founded Jointly because I want to empower more Canadians with the knowledge and tools to create relationship agreements that work for them, at a price they can afford. My big dream? That reaching more Canadians with Jointly ultimately keeps more families out of the court system when relationships breakdown, which can be slow, expensive and traumatic. (I may or may not have personal experience with this 😅)
When I'm not lawyering, I'm most likely hiking with my dogs, kayaking the coastal waters around North Vancouver, or hitting the sauna and cold plunge.
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