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
| Factor | Married | Common-Law |
|---|---|---|
| Automatic property division on separation | Yes: family property laws apply | Depends on the province (yes in BC, Alberta, Saskatchewan and Manitoba after a set period; no in most others) |
| Right to the matrimonial/family home | Yes: equal right to remain, consent needed to sell | In most provinces, no: title determines rights |
| Property division rules | Equal sharing of value in most provinces | Where no property law applies, based on title unless proven otherwise in court |
| Spousal consent to sell home | Required in most provinces | Not required in most provinces (Manitoba’s Homesteads Act, which covers common-law partners, is an exception) |
| How to protect yourself | Marriage provides built-in protection | Cohabitation agreement + joint title |
Provincial breakdown of common-law property rights
| Province | Common-Law Property Rights |
|---|---|
| British Columbia | Same as married after 2 years of cohabitation. Property division applies equally. |
| Ontario | No automatic property division. Common-law partners may claim through constructive trust (must prove contribution in court). |
| Alberta | Since January 1, 2020, adult interdependent partners (3 years together, less with a child, or by agreement) divide property under the Family Property Act (Alberta). |
| Quebec | De 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). |
| Saskatchewan | The Family Property Act treats partners who have cohabited as spouses for at least two years as spouses (The Family Property Act). |
| Manitoba | Common-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 Brunswick | No automatic property division. |
| Nova Scotia | Registered domestic partners have some property rights. Unregistered partners do not. |
| PEI | No automatic property division. |
| Newfoundland & Labrador | No 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 Type | How It Works | Best For |
|---|---|---|
| Joint tenancy | Both own 100% with right of survivorship; if one dies, the other automatically inherits | Married couples and committed common-law partners |
| Tenants in common (50/50) | Each owns 50%; their share goes to their estate on death | Partners 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
| Feature | Details |
|---|---|
| Ownership | Undivided 100% each |
| Right of survivorship | Yes — automatically passes to the survivor |
| Probate | Property bypasses the estate |
| Can one partner sell their share? | No — must sever the joint tenancy first |
| Most common for | Married couples |
Tenants in common
| Feature | Details |
|---|---|
| Ownership | Each owns a defined share |
| Right of survivorship | No — share goes to the estate per the will |
| Probate | Share passes through the estate |
| Can one partner sell their share? | Yes — they can sell or will their portion |
| Most common for | Common-law, friends, or family buying together |
Mortgage qualification: Married vs common-law
For mortgage purposes, lenders treat married and common-law couples the same.
| Factor | Married | Common-Law |
|---|---|---|
| Qualify together | Yes | Yes |
| Combined income used | Yes | Yes |
| Both on mortgage | Typical | Recommended |
| Both on title | Typical | Essential for property protection |
| Credit checked | Both | Both |
| Existing debts counted | Both | Both |
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
| Province | Division |
|---|---|
| All provinces | Family 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
| Scenario | What 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 title | The titled partner keeps the home. The non-titled partner must prove unjust enrichment or constructive trust in court — expensive and uncertain. |
| No cohabitation agreement | The partner not on title has very limited recourse. |
| With cohabitation agreement | The 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:
- Your partner was enriched (their home equity grew)
- You suffered a corresponding deprivation (you contributed but received nothing)
- 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
| Protection | Cost | What It Does |
|---|---|---|
| Both names on title | Free (done at purchase) | Ensures both partners have a legal ownership interest |
| Tenants in common (proportional) | Free (done at purchase) | Reflects unequal contributions fairly |
| Cohabitation agreement | Lawyer’s fees | Legally binding agreement on property division |
| Life insurance | Monthly premium | Lets a surviving partner buy out the deceased’s share |
| Updated wills | Lawyer’s or notary’s fees | Ensures your share goes to your partner (tenants in common) |
| Emergency fund | Varies | Covers mortgage payments if one partner moves out |
The cohabitation agreement
A cohabitation agreement should address:
| Topic | What to Include |
|---|---|
| Property ownership | Who owns what percentage |
| Down payment contribution | Record of who contributed what |
| Ongoing costs | How mortgage, property tax, insurance, and repairs are split |
| What happens on separation | Division of equity, who keeps the home, buyout process |
| What happens if one partner dies | Complements the will; clarifies intent |
| Improvements and renovations | How upgrades by one partner are credited |
| Existing property/assets | What 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:
| Risk | Mitigation |
|---|---|
| Non-qualifying partner has no mortgage obligation | Put both names on the title even if only one is on the mortgage |
| Qualifying partner bears all financial risk | Cohabitation agreement addresses contribution and division |
| Lender may not allow both on title without both on mortgage | Some lenders do; consult your broker |