Common-Law Separation in Ontario: Who Owns the House?

Quick answer

In a common-law separation in Ontario, the matrimonial home rules do not apply and there is no equalization payment. Each partner keeps what they own, and whose name is on title decides who owns the house. A partner who is not on title may still have a claim, but it is a claim they have to make, not a right the Family Law Act hands them.

Ontario’s Family Law Act defines a spouse, for property, as someone who is married. Equalization and the matrimonial home protections both sit under that definition.

Living together for 3 years makes you a spouse for support. It does not make you a spouse for property.

A common-law partner who is not on title has no automatic right to stay in the home, and the owner can list, sell or mortgage it without the other partner’s consent.

Property you own in your own name stays yours. Property the 2 of you own jointly is divided, or its value is shared.

A partner who contributed to a home in the other’s name may be able to claim a share through unjust enrichment or a trust claim. That is a family lawyer’s file, not ours.

A cohabitation agreement or a separation agreement is what changes any of this, and both have to be in writing, signed and witnessed.

Common-law separation in Ontario turns on a question married couples never have to ask: whose name is on the house. The Flowers Team at Royal LePage Meadowtowne Realty has handled 50 divorce-related transactions since January 2024 (Source: Flowers Team internal records, January 2024 to September 2026), and separating common-law partners arrive at the first meeting carrying the most expensive misunderstanding in Ontario family law, which is that living together long enough gives you the same claim on the home as a marriage. It does not. What follows is what the Family Law Act actually says, what a common-law partner can claim, and why title carries so much more weight here than it does for a married couple. Whether to sell, buy out or keep the home is a separate decision, and it sits on our page on selling your home during a divorce in Milton.

This is general information, not legal advice. Family law changes, and how it applies depends on your circumstances. Your family lawyer confirms what applies to you.

Do the matrimonial home rules apply to common-law couples in Ontario?

No. They apply to married spouses only.

Ontario’s Family Law Act defines a spouse, for property purposes, as either of 2 persons who are married to each other, or who together entered into a marriage that is voidable or void in good faith. Part I of the Act, which creates the equalization payment, and Part II, which creates the matrimonial home protections, both run on that definition. A couple who lived together without marrying sits outside both parts of the Act.

That produces 3 consequences, and each one surprises somebody every year.

1. There is no equalization. Married spouses share the growth in each other’s net worth over the marriage and settle it with a cash payment, and we set out how that calculation runs in our post on how property is divided in an Ontario divorce. Common-law partners share none of it. Each of you keeps your own property and the increase in its value.
2. There is no matrimonial home. The equal right of possession, and the rule that neither spouse may sell or mortgage the home without the other’s consent, are Part II rights that attach to spouses. A house a common-law couple lived in together is, in law, a property owned by whoever is on title.
3. There is no automatic right to stay. A common-law partner does not automatically have the right to remain in the family home if it is not in their name, and the partner who owns it can sell or mortgage it without the other’s permission.

The 3 year rule is where almost everybody gets caught

Section 29 of the Family Law Act does extend the word spouse to 2 people who are not married to each other and have cohabited continuously for at least 3 years, or who are in a relationship of some permanence and are the parents of a child. That extension applies to Part III of the Act, which is support. It does not reach Part I or Part II. Three years of living together can create a spousal support obligation and still leave you with no claim on the house. It is the single distinction we see misunderstood more than any other, and people usually learn it at the worst possible moment.

The protections a married couple does get, including the consent rule that stops either spouse selling the home alone, are set out on our divorce hub page, so they are not repeated here.

What does a common-law partner have a claim to?

Five things, and a share of the house is not one of them by default.

1. Whatever is in your own name. Anything you bought for yourself with your own money and hold in your name usually belongs only to you, and the increase in its value is yours.
2. Whatever the 2 of you own jointly. Things you bought together belong to you both, and on a separation it is the jointly owned property that is divided or whose value is shared. For a house, that means title.
3. A possible claim against property in your partner’s name. If you contributed financially, or in another way, to property your partner holds title to, you may be able to claim a share of it. A court looks at whether the partner holding the title was unjustly enriched at the other’s expense, and the claim may be advanced as unjust enrichment or as a trust claim over the property itself. These claims are difficult to prove, they turn entirely on the facts and the documents, and they belong with a family lawyer. We do not assess them, and neither should anyone else who is not a lawyer.
4. Canada Pension Plan credits earned while you lived together. Those can be divided if you lived together for at least 1 year. The application goes to Service Canada within 4 years of separating, unless the 2 of you agree in writing to lift that limit.
5. Whatever the 2 of you agreed in writing. A cohabitation agreement or a separation agreement can give a common-law partner rights the Act does not.

One more consequence of title is worth knowing before anyone moves out. Common-law partners do not inherit from each other without a valid will, and if the house is held in joint tenancy it passes to the surviving owner outside the will entirely. How your title is held, and what your will says, are both questions for your lawyer rather than for us, and they are worth asking in the same conversation as the separation.

Why does whose name is on title matter more for common-law partners?

Because for a common-law couple, title is close to the whole answer.

For a married couple, title is only part of it. The matrimonial home carries protections that override the name on the deed, which is why one spouse cannot list the family home over the other’s objection no matter who bought it. Strip those protections away and the ordinary law of property is all that is left, and the ordinary law of property looks at the deed.

• Right to stay in the home. Married spouses: Both spouses have an equal right of possession while they are spouses, whatever title says. Common-law partners: No automatic right if you are not on title.
• Selling or mortgaging. Married spouses: Neither spouse can do it alone without the other’s consent, a release in a separation agreement, or a court order. Common-law partners: The registered owner can list, sell or mortgage without the other partner’s consent.
• Sharing the increase in value. Married spouses: Shared, and settled through an equalization payment. Common-law partners: Not shared. Each partner keeps their own property and its growth.
• What settles it. Married spouses: The Family Law Act first, then your agreement or a court order. Common-law partners: Title first, then any written agreement, then a claim in court.

That last row is the practical difference. A married couple starts from a statute and negotiates within it. A common-law couple starts from a deed and has to build everything else themselves.

What if both of your names are on title?

Then you are co-owners, and the house sells the way any jointly owned house sells. Both of you sign. Neither of you can transfer the whole property alone, not because the Family Law Act says so, but because you each own a share of it.

Two details are worth confirming with your lawyer before anything is listed. The first is whether you hold the property as joint tenants or as tenants in common, because that decides what happens to a share on death. The second is what happens if one of you wants to sell and the other does not. Ontario’s Partition Act allows a person with an interest in land to apply to the court for partition or for a sale of the property. That is an application a lawyer brings, and whether it is the right move in your situation is entirely their call rather than ours.

If one of you would rather keep the house and pay the other out, the transaction runs much the same way as a spouse buyout, without the matrimonial home rules sitting over the top of it. The value has to be agreed, the person staying has to qualify for the financing alone, and the person leaving has to come off the mortgage as well as off title.

What can you put in writing?

Two agreements do the work the Family Law Act does automatically for married couples, and both are available to common-law partners.

A cohabitation agreement is for 2 people who are living together or intend to, and it can cover ownership in or division of property, support, and any other matter in the settlement of their affairs. Signing one is not a prediction that the relationship will end. It is the only way to decide in advance what happens to a house held in one name.

A separation agreement is for 2 people who cohabited and are now living separate and apart, and it can cover the same ground. Common-law partners can and do sign them. Both documents are domestic contracts under the Family Law Act, and neither is enforceable unless it is in writing, signed and witnessed, which is the same standard we set out in our post on legal separation and divorce in Ontario. Each of you needs your own lawyer to review it, and that is not a formality.

The agreement matters for a second reason if either of you intends to buy again after the house sells. Most financial institutions want to see an executed or agreed-upon separation agreement before they will qualify 1 person alone. Your mortgage professional confirms what your lender requires, and what the house costs to run on one income is worth working out before either of you commits to anything.

What are the 4 mistakes common-law partners make about the house?

1. Assuming 3 years of living together is the same as being married. It is, for support. It is not, for property. The two live in different parts of the same statute.
2. Leaving the house in 1 name because it was simpler at the time. Whoever is on title owns it, and correcting that later means bringing a claim rather than exercising a right.
3. Paying for a down payment or a renovation on a partner’s house with nothing written down. Contributions can support a claim, but a claim runs on evidence. Keep the transfers, the receipts and the statements, and keep them somewhere that is yours.
4. Waiting to see whether the house sells before getting legal advice. A partner who is not on title has no automatic notice of a sale and no automatic right to stop one. Advice before a listing is worth a great deal more than advice after a closing.

Talk to us, in confidence

If you are separating from a common-law partner and the house is part of it, you do not need to have decided anything before you call. The first conversation is confidential and costs nothing. We will prepare a free home evaluation so that you, your family lawyer and your mortgage professional are working from a real number rather than an estimate off a website, and we will tell you plainly what a sale looks like from where you are standing. Call the Flowers Team at 905-878-6232 or reach us at flowersteam.ca. The Flowers Team has been ranked #1 in Milton since 2009 and has helped over 3,000 families, and in 2026, 1 in every 7 of our transactions involves a separating household.

We understand that separation is a sensitive and confidential matter. To respect your privacy, we will not initiate phone calls unless we have received your explicit written consent.

Frequently Asked Questions, Built From Real Search Queries

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Sources

Family Law Act, R.S.O. 1990, c. F.3, Government of Ontario (accessed September 5, 2026)

Partition Act, R.S.O. 1990, c. P.4, Government of Ontario (accessed September 5, 2026)

Property division: Common-law couples, Community Legal Education Ontario (CLEO) (accessed September 5, 2026)

Flowers Team internal records, January 2024 to September 2026, divorce transaction counts and share of business

Not intended to solicit properties currently under contract.