Kara Sears
If you are wondering whether you can evict your common-law husband, it is important to first understand the legal definition of a common-law spouse. A common-law spouse refers to an unmarried couple living together, akin to a married couple, possibly with or without children. While many assume that common-law spouses are entitled to the same legal rights as a married couple during a divorce, this is not the case. The legal rights of common-law spouses depend on factors such as cohabitation, finances, property interests, and arrangements for any children. If you are looking to evict your common-law husband, the process may vary depending on your specific circumstances, such as whether you have a joint tenancy or are tenants in common. Seeking legal advice from family lawyers or legal clinics can help you understand your rights and options in this situation.
Can I evict my common-law husband?
| Characteristics | Values |
|---|---|
| Legal recognition of common-law spouse | No |
| Legal rights | Depend on whether you are married or living together |
| Couples who live together unmarried | Called cohabitants or cohabitees |
| Joint ownership of property | Joint tenancy or tenancy in common |
| Court intervention | Required if no agreement is possible |
| Mediation | Required before court intervention, unless in cases of domestic abuse |
| Notice period | 30 days, unless in cases of abuse |
| Changing locks | Allowed, but with landlord's consent |
| Lease termination | Option to terminate lease and move out |
| Legal advice | Available at women's shelters, women's centres, YWCAs, and family law teams |
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Common law spouse rights
The rights of common-law spouses vary depending on the jurisdiction. In some places, common-law marriages are not legally recognised, but the couple may be defined as "unmarried spouses" and treated the same as married spouses in certain contexts, such as taxes and financial claims. In other places, common-law marriages are recognised and offer similar benefits to traditional marriages, including healthcare benefits, hospital visitation rights, the right to make emergency medical decisions, access to personal records, rights in property division upon separation, child custody rights, spousal support rights, inheritance rights, and tax deductions.
In Canada, for example, common-law relationships are recognised for certain purposes, but the country does not have the institution of common-law marriage. In Ontario, common-law spouses are specifically recognised in dealing with spousal support issues, but they do not have automatic rights to their spouse's property. In Quebec, many laws explicitly apply to common-law partners in "de facto unions", but these partners do not have any legal rights between them, such as alimony, family patrimony, compensatory allowance, and matrimonial regime. In Saskatchewan, common-law relationships are regulated by The Family Property Act and The Family Maintenance Act.
In the United States, the rights of common-law spouses vary by state. For example, in Texas, common-law marriages are recognised and offer similar benefits to traditional marriages. To be considered a common-law marriage in Texas, couples must agree to be married, live as spouses, and be represented as such. It is important to note that, even in states where common-law marriages are recognised, there may be challenges in proving marital status due to the lack of a formal record.
To fully understand their rights, it is crucial for individuals in a common-law marriage or considering this arrangement to seek legal advice specific to their jurisdiction.
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Notice period
If you are looking to evict your common-law husband from your home, the first step is to provide him with a written notice to vacate. This notice should include a specific date by which your ex-partner must leave. It is important to give them a reasonable amount of time to find alternative accommodation. A notice period of 30 to 60 days is generally considered appropriate in most cases.
Once the notice period has been given, your ex-partner is expected to vacate the premises by the specified date. However, if they refuse to leave voluntarily, you have the right to take further action. You can start by changing the locks and putting their belongings in a safe place, such as a storage unit, which they can access at a later date. It is important to handle their belongings with care and not to dispose of them without their consent.
In some cases, your ex-partner may become hostile or refuse to cooperate. If this happens, it is crucial to involve the legal system. You may need to seek a vacate order from the court, stating that your ex-partner has no legal right to remain in the house. With this court order, the police will be compelled to remove them from the property. Additionally, you can request a restraining order for your safety and to prevent any further issues.
It is worth noting that the laws regarding common-law spouses can vary based on your location. For example, in Ontario, common-law couples do not have the same automatic property rights as married couples. Therefore, it is always advisable to consult a local family lawyer to understand your specific rights and obligations during this process. They can guide you on the applicable laws in your region and help you navigate the legal system effectively.
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Changing locks
Changing the locks is a common question that divorce lawyers hear. The answer is generally no, as both spouses have an equal right to access the property, and changing this right requires a court order or legal agreement.
In many jurisdictions, laws exist to protect individuals from being locked out of their homes during divorce proceedings. These legal safeguards are crucial, especially when one spouse might attempt to change the locks after separation. If your spouse locks you out of your home while finalising your divorce, it's crucial to understand your legal protections against lockouts to safeguard your rights.
In the case of common law marriage, it is advisable to get legal advice before changing the locks. If the house is solely in one person's name, that person can change the locks and evict their spouse at any time. However, if the spouse continues to help pay the mortgage, the other spouse may be liable for occupation rent.
In the state of Michigan, there are two ways to change the locks: divorce or legal separation. Both of these require permission from the Court. The first way is to obtain a personal protection order if there has been violence or abuse in the relationship. Another way is to file a motion for the exclusive use of the marital home.
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Mediation
If you are looking to evict your common-law husband, it is important to understand the legal rights and responsibilities of both parties. The laws governing separation and divorce vary by location, so it is always recommended to seek independent legal advice from a family lawyer.
In the context of evicting your common-law husband, mediation can be a useful tool to resolve the matter amicably. It provides an opportunity for both parties to express their concerns and negotiate the terms of their separation, including the division of property and assets. By opting for mediation, you and your common-law husband can work together to find a solution that meets both of your needs, rather than having a decision imposed upon you by a court.
During mediation, it is important to remain respectful and open-minded. The mediator will help create a safe and structured environment for both parties to share their perspectives and work through their differences. It is crucial to actively listen to each other and be willing to compromise. While mediation may not be suitable or successful for every couple, it can be a valuable alternative to traditional litigation, potentially saving time, money, and emotional distress.
To initiate mediation, you can contact a family lawyer or a professional mediation service. They will guide you through the process and ensure that your rights are protected. It is always advisable to seek legal advice before taking any action, as the specific laws and procedures may vary depending on your location.
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Court proceedings
If you are looking to evict your common-law husband, you must first establish whether you are legally married. If you are married, your husband cannot evict you, but he can file for divorce and seek temporary orders granting him exclusive use of the house. In this case, you may be given very short notice to vacate the property. If you are not married, your husband can evict you, but he must follow the correct eviction procedures.
In cases where the home belongs solely to one spouse, that spouse must submit sufficient evidence to the court, such as title documents, the deed, or proof of payment. The case becomes more complicated if the other spouse is listed on the deed or has contributed financially to the property. Before a spouse can be formally evicted, it is crucial to understand the state's interpretation of marital property and relevant eviction laws.
Courts may consider various factors to ensure a fair division of property and assets, including the length of the marriage, the income and future earnings of each spouse, the standard of living during the marriage, and the age and well-being of each spouse. In cases of domestic violence or abuse, a spouse may be able to petition the court to evict the other spouse from the marital home.
In some states, such as Texas, neither spouse can legally force the other to leave without a court order. Protective orders are often required to seek relief and remove a spouse from the house. This process may involve issuing a written notice to vacate and potentially initiating an eviction lawsuit if the spouse does not comply. In Illinois, the court can grant temporary eviction during divorce proceedings if living together jeopardizes the well-being of either spouse or their children.
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Frequently asked questions
There is no legal recognition of a "common-law partner/spouse", and your legal rights depend on whether you are married or living together. If you are living together and you are both on the lease, you are considered "cohabitants" or "cohabitees". If you are the sole owner of the property, you can ask your common-law husband to leave and change the locks, but it is recommended that you give 30 days' notice.
If you are tenants in common, you each own a specific share of the property's value. If your shares are equal, you can ask the court to decide what will happen to your home, but you will need to show that you have tried mediation first.
If your partner is abusive, you do not need to try mediation first. You can contact your local women's shelter, women's centre, or YWCA to see if they have a legal clinic and meet with a lawyer to get advice.
If you can reach an agreement between yourselves regarding finances, property interests, and arrangements for your children, you can formalise this in a separation agreement or consent order to ensure your agreement is legally binding.
If you have a declaration of trust that sets out how the equity is to be divided between you in the event of a relationship breakdown, and you are both happy to sell the house and split the proceeds, then you won't have any issues. However, if one party challenges the declaration of trust or does not consent to a sale, you will need to issue court proceedings if an agreement outside of court is not possible.
