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. Most common-law couples assume they have the same property rights as married couples. They don’t (with one exception). Here’s what you need to know.
The fundamental difference
| Factor | Married | Common-Law |
|---|---|---|
| Automatic property division on separation | Yes — matrimonial property laws apply | No (except BC after 2 years) |
| Right to the matrimonial/family home | Yes — equal right to remain, consent needed to sell | No — title determines rights |
| Property division rules | 50/50 in most provinces | Based on title ownership, unless proven otherwise in court |
| Spousal consent to sell home | Required in most provinces | Not required |
| 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 | No automatic property division. Unjust enrichment claims possible but difficult. |
| Quebec | No recognition of common-law unions for property division. Civil union or marriage required. |
| Saskatchewan | No automatic property division for common-law partners. |
| Manitoba | After 3+ years of cohabitation, common-law partners may apply for equal division of assets. |
| 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: Outside of BC (and partially Manitoba), common-law partners have minimal automatic property rights. Your ownership is determined by 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 |
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 | Net family property is equalized — the home’s equity is divided regardless of title. The spouse with higher net family property pays the other the difference. The matrimonial home receives special protection. |
One spouse can stay in the matrimonial home during separation proceedings. Neither spouse can sell, mortgage, or lease the home without the other’s consent.
Common-law couples (except BC and Manitoba)
| 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 (legal fees of $30,000–$100,000+), time-consuming (1–3 years), and uncertain. A cohabitation agreement prevents this entirely.
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 | $1,500–$5,000 | Legally binding agreement on property division |
| Life insurance | $30–$100/month | Ensures surviving partner can buy out the deceased’s share |
| Updated wills | $500–$2,000 | 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 |
Both partners must get independent legal advice for the agreement to be enforceable. Cost: $1,500–$5,000 total.
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 |