Evicting Your Common-Law Spouse: What You Need To Know

Although the term common-law spouse is used colloquially, it is not a legally recognised term. The legal rights of cohabitants (unmarried couples living together) depend on whether they can reach an agreement regarding finances, property interests, and arrangements for any children. If a couple owns a property as joint tenants, they both own the whole property. If they own the property as tenants in common, they each own a specific share of its value, which may or may not be equal. If one party does not consent to a sale, court proceedings may be necessary to determine the outcome.

Characteristics of evicting a common-law spouse

Legal recognition of a common-law spouse

The recognition of common-law spouses varies across different jurisdictions. In Canada, for instance, while some provinces may grant couples in marriage-like relationships similar rights and responsibilities to those of married couples, they are not legally considered married. They may be defined as "unmarried spouses" and treated as such for tax and financial purposes.

In the US, all jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, although the Supreme Court has not fully articulated the extent to which the Constitution requires interstate marriage recognition. Some states allow for the registration of informal or common-law marriages based on a state-issued form. The English-speaking Caribbean, due to its colonial past, has statutes concerning common-law marriage similar to those in England. However, in the Caribbean, the term "common-law marriage" is also used to describe any long-term relationship between male and female partners.

In England and Wales, the term "common-law marriage" is used to refer to unmarried, cohabiting heterosexual couples, but this is merely a social usage that does not confer the legal rights and obligations of a formal marriage. While there is no statutory requirement for the length of time a couple needs to live together to be considered common-law spouses, generally, the longer a couple lives together, the stronger their case is. Both partners must have the legal capacity to marry, which typically means being at least 18 years old, of sound mind, and not already married to someone else. They must also intend to be married and behave as a married couple, referring to each other as "partner," "spouse," or taking the same last name.

In Australia, de facto relationships have been recognized in the Family Law Act (Commonwealth) since March 1, 2009, although this does not extend to de facto relationships outside of Australia.

Rights of cohabitants

Cohabitants, or common-law partners, do not have the same legal rights as married couples or those in a civil partnership. This means that, in the event of a relationship breakdown or death, unmarried couples are at a disadvantage when it comes to matters of property, finances, and children.

When it comes to property, cohabitants do not have automatic rights to a share of the equity, even if they have contributed financially. If the property is in the sole name of one partner, the other will have no right to continue living there in the event of a breakup. If the couple owns the property jointly, they will need to decide what happens to the home, and potentially involve the court to determine ownership.

Cohabitants can protect their rights by drawing up a cohabitation agreement or living together agreement. This can outline each party's intentions and protect their interests in the event of a breakup or death. It is also recommended that cohabitants make a will to ensure their assets are passed on as intended.

In terms of finances, cohabitants do not have the same tax benefits as married couples, and they cannot make a claim against any assets in the sole name of their partner. They will also not automatically inherit their partner's pension or have access to their bank accounts in the event of their partner's death.

Finally, when it comes to children, cohabitants may face some complexities regarding parental responsibility and adoption. While both married and cohabiting couples can apply to adopt a child jointly, the father of a child born to cohabiting parents will only have parental responsibility if he is on the child's birth certificate.

Property ownership

In some jurisdictions, like Ontario, common-law couples do not have the same automatic property rights as married couples. If one common-law spouse owns the property, they may be able to evict the other by providing a written vacate notice. If the other party refuses to leave, the owner can change the locks and request police assistance if the evicted spouse returns, charging them with trespassing. However, it is important to seek legal advice, as some sources suggest that a court order may be required for an eviction in such cases.

In community property states, any property acquired during the marriage is generally considered to belong to both spouses equally. This means that even if one spouse owns the property, they may not be able to evict the other without legal proceedings. The court will consider various factors to ensure a fair division of assets, including the length of the marriage, income, standard of living, and contributions to future earnings.

If both common-law spouses are co-owners of the property, the situation becomes more complex. In some jurisdictions, co-owners cannot evict each other through a standard unlawful detainer process. Instead, they may need to pursue a partition action, which often results in the sale of the property to either a third party or one of the co-owners.

It is important to note that domestic violence or abuse can be grounds for eviction, even if the property is considered community property. In such cases, the abused spouse may seek an emergency protection order or temporary orders for exclusive use of the home.

Joint accounts

In the case of joint accounts, the law treats the matter differently depending on the state or country. In the US, the laws of the individual state govern separation and divorce issues. In common law states, property acquired during the marriage may be considered separate if it was purchased with funds from an individual bank account or if the deed to the property lists only one spouse. On the other hand, if the deed to the marital home lists both spouses and was purchased with funds from a joint account, it is deemed marital property, and both spouses have equal rights to possession.

In community property states, any property acquired during the marriage is generally considered to belong to both spouses equally, and it will be divided among the parties during the divorce, regardless of whether it is labelled as separate or joint property.

In Canada, specifically Ontario, the matrimonial home is treated distinctly from other property. Regardless of which spouse has the title to the home, both spouses have equal rights to possession under the Family Law Act (FLA). The court can make an order for exclusive possession to evict one spouse in cases of domestic violence or to mediate the impact on children. Cohabitating spouses may also get a constructive trust over the matrimonial home, giving them joint equitable interest and possessory rights.

It is important to note that evicting a spouse from a jointly owned home can be complex. In some cases, a partition referee or court intervention may be required to remove an uncooperative co-owner. Consulting a family law attorney and understanding the specific laws in your state or country is crucial when dealing with joint accounts and eviction during separation or divorce.

Parental responsibility

In the context of parental responsibility, the well-being and best interests of any children involved are paramount. If there are children in the family, the court may be less inclined to grant an eviction order if it could negatively impact the children. This could include situations where the common-law spouse being evicted is the primary caregiver or has a strong relationship with the children. In such cases, the court may prioritize maintaining stability for the children over the eviction request.

Additionally, child support obligations must be considered during the separation of common-law spouses. Regardless of the relationship status, both parents are legally obligated to support their dependent children. This means that child support calculations and arrangements should be addressed during the separation process, regardless of whether an eviction occurs.

It is worth noting that if the common-law spouse being considered for eviction has acted as a parent to their partner's children from a previous relationship, they may also be held responsible for providing child support for those children. This further emphasizes the importance of carefully considering the impact of eviction on the children involved and making appropriate arrangements for their well-being.

To ensure that parental responsibilities are fulfilled and the best interests of the children are met, it is advisable to consult with a family law attorney. They can provide guidance on navigating the eviction process while upholding the necessary parental responsibilities and minimizing potential negative consequences for the children involved.

Frequently asked questions