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Separation and Divorce or Death of a Spouse: Property Division

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Married or common-law — does it make a difference?

When couples separate, the way they have to divide their property depends on whether they were legally married or in a common-law relationship.

The reason why a couple decides to separate does not affect how they divide their property.

In this booklet, "married" means a couple who had a legally recognized marriage. This means they had a marriage ceremony performed by someone with the legal power to marry them, for example, a judge, justice of the peace, or religious official.

Couples who live together as spouses, but have not legally married each other, are sometimes said to be living “common-law”. Living together for many years, having children together, or referring to each other as "husband", "wife", or "spouse" does not make these couples legally married to each other.

For family law issues like spousal support, child support, custody, and access, it does not matter if you and your spouse were legally married or living common-law. The rules are the same.

But the rules are different for other issues like:

  • dividing property
  • who can stay in or sell the family home
  • dividing property in your spouse's will

For these issues, being married or common-law makes a difference. For example, married couples automatically share the value of their property if they separate or if one spouse dies. This is not true for common-law couples.