In order to meet the criteria for common law, it is necessary for two individuals to cohabit in a conjugal partnership for a minimum duration of three years without interruption. If the couple has a kid, whether through birth or adoption, they are simply required to have lived together in a conjugal partnership for one year without interruption.
According to the Family Law Act, married couples have specific rights and responsibilities that cohabiting spouses do not have access to. These include the distribution of assets and the equal sharing of financial advantages. The definition of a "spouse" is outlined in section 1 of the Family Law Act and does not include cohabiting partners.
Various legal options exist for common law partners to secure property rights in a specific item, including the possibility of obtaining a monetary award or a constructive trust based on unjust enrichment.
Residential property designated for the purpose of marriage or a married couple's shared residence. Regarding the marital residence, the Family Law Act grants married spouses equal entitlement to possession. Nevertheless, the statute safeguards the rights of possession in the marital residence in order to prevent instances of domestic violence or to facilitate mediation for the protection of children. Although common law couples do not have possessory rights, they can nevertheless seek the matrimonial house as part of spousal maintenance.
Furthermore, the courts have the authority to establish a constructive trust for a cohabiting spouse, so granting them a shared equitable stake in the residence and, consequently, shared rights of possession.
Finally, the court may determine, based on the specific situation, to issue either a temporary or permanent restraining order against a former spouse or partner who was living together with the person seeking the order. Alternatively, in the presence of a criminal charge, it is possible to completely remove the cohabitant from the married house.