First, for couples who are NOT married, Ontario’s Family Law Act sets out various rights and obligations that apply to couples who have been “cohabiting” for three years or more, or who have been cohabiting for less time but have a child together.
Even when a court deals with spousal support for married couples, it is the length of the couples’ cohabitation, not the length of their marriage, that the court will use when calculating a spousal support obligation or determining if there is an entitlement. The longer the couple has been “cohabiting”, the longer any spousal support obligation is likely to continue. To understand the requirements around spousal support take a look at our article.
The idea of “cohabiting” also comes up when we are talking about separation. Couples seeking a divorce will need to prove marriage breakdown. The most common way to show marriage breakdown is to indicate the spouses have been living “separate and apart” for one year. And living “separate and apart” basically means you and your spouse are no longer cohabiting.
The idea of “cohabiting” also comes up when we are talking about separation. Couples seeking a divorce will need to prove marriage breakdown. The most common way to show marriage breakdown is to indicate the spouses have been living “separate and apart” for one year. And living “separate and apart” basically means you and your spouse are no longer cohabiting.
The Definition of Cohabitation
Now, what does it mean to cohabit? You might be surprised to learn that two people can cohabit even though they maintain separate residences and that couples who live in the same house may not be seen as cohabiting, at least not by a court.
Cases have established many of the factors that a court will look at when determining if people are in fact “cohabiting”. These include but is not limited to whether the partners have meals together, share the same bed, share chores, give one another gifts, care for each other when one of them is sick etc.
It is also quite common for two married spouses to both be living in the matrimonial home but no longer be cohabiting. One spouse will often move into a guest bedroom, and the couple will stop sharing meals and socializing together, but for financial or childcare reasons, they will both stay in the home. The couple may then be considered separated, even if they continue to live under the same roof.
To summarize, the term “cohabit” can be an important one in Family law, and it does not mean simply living together. There are a range of factors that a court will consider to determine if, in fact, a couple is cohabiting at any given time.
Cohabitation cannot directly affect the ownership of an asset like the matrimonial home. The Family Law Act Part 2 only applies to married couples. To better understand how property is divided take a look at our property division article or contact one of our lawyers for more information. Cohabitation does however work to put the needs of any children affected by the separation first. The courts may see a matrimonial home as an important asset and give joint equitable interest to both parties or equal rights to live in the home. This can be done under Constructive Trust.
What is a Constructive Trust
A constructive trust is an equal and fair way the court “constructs a trust” in favour of a non-owner spouse towards an asset commonly the matrimonial home. It shows that the non-owner spouse contributed through money or labour and helped enrich the legal title owner’s property in question.
There are four requirements a non-owner spouse must prove:
- Direct or indirect contributions to the asset in question;
- The expectation of interest in the asset;
- Reasonable expectations in the circumstances;
- the asset owner must reasonably expect to provide an interest in the asset to the person claiming a constructive trust.
What is a Cohabitation agreement?
A cohabitation agreement is a formalized agreement between two unmarried spouses on the matters not covered by law. A cohabitation agreement should be completed with or by a lawyer. It helps prevent inequality in the event of a separation.
Cohabitation agreements commonly cover:
- Household expense payments
- What happens if you separate
- The property and debts brought into the relationship
- Repayments of shared debts after separation
- What support payments if any are paid after separation due to a change in equality or status in the relationship
A cohabitation agreement can change as your relationship changes. It is best practice to review your agreement once a year to ensure if covers your current situation.
If you would like to speak with one of our lawyers regarding further issues related to this topic please contact us at (416) 840-1475 or schedule your free initial consultation here.
