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 if who have been cohabiting for less time but have a child together. The main right these spouses become entitled to is spousal support.
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.
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.
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 when determining if people are in fact “cohabiting”. These include 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, and have integrated finances. The court will also consider how the couple acts in public, and how their family and friends treat them.
A retired couple in a second relationship might live together during winters in Florida, but live in separate homes while they are in Canada. A young couple might spend all holidays and weekend together, but still be living separately while they save up for a house together.
For example, someone with seasonal employment, or who works two weeks on/two weeks off, might not live at home for some portions of the year, but will still return to their partner’s home when they are not working. A court would most likely determine that these couples are in fact cohabiting. Of course, those decisions also depended on the specific details of the relationship in question, and the factors I outlined previously. Not every couple in the same general circumstances will be seen as cohabiting.
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 to “cohabit” can be an important one in family law, and it does not mean simply to live 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.
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