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Buying a Home: Common-Law vs Married in Canada (Legal & Mortgage Differences)

Updated

Buying a home together is one of the biggest financial commitments a couple makes — but the legal protections differ significantly depending on whether you are married or common-law. Many common-law couples assume they have the same property rights as married couples. In most provinces they don’t; BC, Alberta, Saskatchewan and Manitoba are the exceptions once a couple meets the time test. Here’s what you need to know.

The fundamental difference

FactorMarriedCommon-Law
Automatic property division on separationYes: family property laws applyDepends on the province (yes in BC, Alberta, Saskatchewan and Manitoba after a set period; no in most others)
Right to the matrimonial/family homeYes: equal right to remain, consent needed to sellIn most provinces, no: title determines rights
Property division rulesEqual sharing of value in most provincesWhere no property law applies, based on title unless proven otherwise in court
Spousal consent to sell homeRequired in most provincesNot required in most provinces (Manitoba’s Homesteads Act, which covers common-law partners, is an exception)
How to protect yourselfMarriage provides built-in protectionCohabitation agreement + joint title

Provincial breakdown of common-law property rights

ProvinceCommon-Law Property Rights
British ColumbiaSame as married after 2 years of cohabitation. Property division applies equally.
OntarioNo automatic property division. Common-law partners may claim through constructive trust (must prove contribution in court).
AlbertaSince January 1, 2020, adult interdependent partners (3 years together, less with a child, or by agreement) divide property under the Family Property Act (Alberta).
QuebecDe facto spouses have no general property regime, but a couple who have a child together born or adopted on or after June 30, 2025 is automatically in a parental union, whose patrimony includes the family residences (Quebec).
SaskatchewanThe Family Property Act treats partners who have cohabited as spouses for at least two years as spouses (The Family Property Act).
ManitobaCommon-law partners who have lived together for at least 3 years, or registered their relationship, fall under The Family Property Act, which divides property equally (Manitoba).
New BrunswickNo automatic property division.
Nova ScotiaRegistered domestic partners have some property rights. Unregistered partners do not.
PEINo automatic property division.
Newfoundland & LabradorNo automatic property division.

Key takeaway: in BC, Alberta, Saskatchewan and Manitoba, common-law partners who meet the time test divide property much like married spouses; in Ontario, the Atlantic provinces and Quebec (outside a parental union), ownership mostly follows whose name is on the title.

Title options when buying together

Title TypeHow It WorksBest For
Joint tenancyBoth own 100% with right of survivorship; if one dies, the other automatically inheritsMarried couples and committed common-law partners
Tenants in common (50/50)Each owns 50%; their share goes to their estate on deathPartners with equal contribution
Tenants in common (unequal)Each owns a specified percentage (e.g., 60/40, 70/30)Partners with unequal contributions

Quebec has no joint tenancy: co-owners hold undivided shares, and a share passes under the will or succession rules.

Joint tenancy

FeatureDetails
OwnershipUndivided 100% each
Right of survivorshipYes — automatically passes to the survivor
ProbateProperty bypasses the estate
Can one partner sell their share?No — must sever the joint tenancy first
Most common forMarried couples

Tenants in common

FeatureDetails
OwnershipEach owns a defined share
Right of survivorshipNo — share goes to the estate per the will
ProbateShare passes through the estate
Can one partner sell their share?Yes — they can sell or will their portion
Most common forCommon-law, friends, or family buying together

Mortgage qualification: Married vs common-law

For mortgage purposes, lenders treat married and common-law couples the same.

FactorMarriedCommon-Law
Qualify togetherYesYes
Combined income usedYesYes
Both on mortgageTypicalRecommended
Both on titleTypicalEssential for property protection
Credit checkedBothBoth
Existing debts countedBothBoth

The lender doesn’t care about your marital status — only your combined financial profile. But the title ownership matters enormously for legal protection.

What happens if you separate

Married couples

ProvinceDivision
All provincesFamily property, including the home’s equity, is shared regardless of whose name is on title; the method differs by province (Ontario, for example, equalizes each spouse’s net family property). The family home gets special protection.

In most provinces, both spouses have an equal right to stay in the matrimonial home during separation, and neither can sell or mortgage it without the other’s consent.

Common-law couples in provinces without property division

ScenarioWhat Happens
Both on title (joint tenancy)Must agree to sell or one buys the other out. If no agreement, court orders sale.
Both on title (tenants in common)Each keeps their share. One can force a sale through a partition action.
Only one on titleThe titled partner keeps the home. The non-titled partner must prove unjust enrichment or constructive trust in court — expensive and uncertain.
No cohabitation agreementThe partner not on title has very limited recourse.
With cohabitation agreementThe agreement governs division.

The constructive trust problem

If you are common-law and only your partner is on the title, you must prove in court that:

  1. Your partner was enriched (their home equity grew)
  2. You suffered a corresponding deprivation (you contributed but received nothing)
  3. There was no legal reason for the enrichment (no gift, no agreement)

This is expensive, slow and uncertain. A cohabitation agreement can prevent it.

How to protect yourself as a common-law couple

ProtectionCostWhat It Does
Both names on titleFree (done at purchase)Ensures both partners have a legal ownership interest
Tenants in common (proportional)Free (done at purchase)Reflects unequal contributions fairly
Cohabitation agreementLawyer’s feesLegally binding agreement on property division
Life insuranceMonthly premiumLets a surviving partner buy out the deceased’s share
Updated willsLawyer’s or notary’s feesEnsures your share goes to your partner (tenants in common)
Emergency fundVariesCovers mortgage payments if one partner moves out

The cohabitation agreement

A cohabitation agreement should address:

TopicWhat to Include
Property ownershipWho owns what percentage
Down payment contributionRecord of who contributed what
Ongoing costsHow mortgage, property tax, insurance, and repairs are split
What happens on separationDivision of equity, who keeps the home, buyout process
What happens if one partner diesComplements the will; clarifies intent
Improvements and renovationsHow upgrades by one partner are credited
Existing property/assetsWhat each partner brought to the relationship

Independent legal advice for each partner makes the agreement much harder to challenge later.

When only one partner is on the mortgage

Sometimes only one partner qualifies for the mortgage (due to credit, income, or immigration status). In this case:

RiskMitigation
Non-qualifying partner has no mortgage obligationPut both names on the title even if only one is on the mortgage
Qualifying partner bears all financial riskCohabitation agreement addresses contribution and division
Lender may not allow both on title without both on mortgageSome lenders do; consult your broker