Is buying a home as common-law the same as married in Canada?

No. Married couples have automatic property rights under provincial matrimonial law — in most provinces, the matrimonial home is split 50/50 on separation regardless of whose name is on the title. Common-law partners do not have the same automatic rights. If you are common-law and only one partner is on the title, the other partner may have no legal claim to the property on separation.

Do common-law partners have property rights in Canada?

In most provinces, common-law partners do NOT have the same property rights as married couples. British Columbia is the exception — after 2 years of cohabitation, common-law partners have the same property division rights as married couples. In Ontario, Alberta, and most other provinces, common-law partners must prove contribution through a constructive trust claim in court.

Should both names be on the mortgage if we are common-law?

If both partners are contributing to the mortgage, both names should be on the title and the mortgage. This protects both partners legal ownership interest. If only one partner qualifies for the mortgage, consider a cohabitation agreement that addresses property ownership and what happens on separation.

What is a cohabitation agreement?

A cohabitation agreement is a legally binding contract between common-law partners that outlines how property, debts, and assets will be divided if the relationship ends. It is the common-law equivalent of a prenuptial agreement. A properly drafted cohabitation agreement costs $1,500–$5,000 and provides the legal protection that marriage provides automatically.

Do I need my spouse consent to sell the matrimonial home?

Yes. In most provinces, you cannot sell, mortgage, or encumber the matrimonial home without your married spouse consent — even if you are the sole owner on title. This protection does not extend to common-law partners in most provinces.

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

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