Keith Mack
When it comes to common-law relationships, the question of who gets the house in the event of a separation is a complex one. Unlike married couples, common-law partners do not have automatic property rights to the matrimonial home. In Ontario, Canada, common-law partners must have lived together for at least three years or have a child together and have lived together for at least one year to be considered common-law spouses. While there is no legal requirement for common-law couples to divide their property equally, they may choose to enter into a domestic contract, such as a cohabitation agreement, to set out their respective rights and obligations. In the case of a dispute, a court may order a restraining order or an equalization payment, especially if one partner has contributed financially or through unpaid work to the property. It is crucial for separating common-law spouses to seek legal advice to understand their rights and obligations regarding property division.
| Characteristics | Values |
|---|---|
| Common law couples required to split property | No |
| Common law couples' right to split an increase in value of the property they brought with them to the relationship | No |
| Common law couples' right to split the increase in value of the family home | No |
| Common law couples' right to an equalization payment | No |
| Common law couples' right to claim for unjust enrichment | Yes |
| Common law couples' right to a constructive trust over the matrimonial home | Yes |
| Common law couples' right to a cohabitation agreement | Yes |
| Common law couples' right to a separation agreement | Yes |
| Common law couples' right to a restraining order | Yes |
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What You'll Learn
- Common-law couples are not required to split property acquired during their relationship
- Cohabitation agreements can set out terms for separation, including property division
- Common-law spouses may need to pursue litigation to claim a share of the home
- Courts may consider whether a couple was part of a joint family venture
- Common-law spouses do not have automatic property rights to the matrimonial home
Common-law couples are not required to split property acquired during their relationship
In Ontario, property acquired during a marriage must be split equally when a marriage ends. However, common-law couples are not legally required to split property acquired during their relationship. Each partner in a common-law relationship is entitled to whatever they brought into the relationship or acquired during it. Furniture, household items, and other property belong to the person who bought them.
Although there is no requirement to divide property on separation, common-law spouses may choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, that sets out their respective rights to property. A cohabitation agreement can set out terms for if the relationship ends, but it cannot dictate decision-making responsibility or parenting time with respect to any children.
If you contributed to property your spouse owns, you may have a right to part of it. If your spouse does not agree to pay you back, you may need to go to court to get back your contribution. The longer a relationship, the more integrated the finances, and the more likely a court will find a joint family venture. In this case, you will need to show that your partner unfairly profited from the venture and is leaving the relationship with a disproportionate share of the profits.
If you need to go to court for a decision on the amount of an equalization payment, you have six years from the day you separated, or two years from the day your divorce is final, to do so.
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Cohabitation agreements can set out terms for separation, including property division
Cohabitation agreements, also known as domestic contracts, are a way for unmarried couples to outline how they've agreed to handle their property and finances during their relationship and in the event they part ways. These agreements can be made when a couple first moves in together, at any point during the relationship, or even when they are ending their relationship.
Cohabitation agreements are especially important for common-law couples as, unlike married couples, they are not entitled to the equal division of their family property. Each partner in a common-law relationship is entitled only to whatever they brought into the relationship or acquired during it. This can include furniture, household items, and other property, which belong to the person who bought them.
Cohabitation agreements can help prevent problems that may arise when a cohabiting couple splits up. For example, it can be complicated to determine who bought what or who brought what into the home, especially if the couple has lived together for a long time and has merged finances.
Cohabitation agreements can also help to protect both parties in the event of a separation. For instance, if one partner has contributed extensively to the value of an asset that belongs to their partner, such as a home, a pension, or a savings account, this can be outlined in the agreement.
In addition, a cohabitation agreement can make it easier for a court to understand the full context of the situation and divide property as predetermined in the event of a separation. An attorney who is familiar with cohabitation agreements can help ensure that the contract will hold up in the event of a split and that all assets are covered and accounted for.
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Common-law spouses may need to pursue litigation to claim a share of the home
Unlike married couples, common-law couples are not entitled to the equal division of their family property. Each partner in a common-law relationship is entitled only to whatever they brought into the relationship or acquired during it. In Ontario, Canada, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years. If they have a child together, the duration is lowered to one year.
Common-law spouses are not legally required to split property acquired when they lived together. Furniture, household items, and other property belong to the person who bought them. However, if a common-law spouse provided unpaid work or put money toward a property, they may need to pursue litigation to claim a share of the home. This can be done through a constructive trust or resulting trust claim. These remedies are based on the principle of unjust enrichment, which requires the demonstration of three elements: an enrichment, a corresponding deprivation, and an absence of any juristic reason for the enrichment.
In some cases, a common-law spouse may be able to claim a share of the home by proving that they provided value to the property that would justify repayment for their effort. This could include household or child-rearing tasks that enabled their partner to work or build a business. It is important to bring a trust claim or seek legal advice as soon as possible after separation, as there may be a limitation period for bringing a claim.
Additionally, common-law couples can choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, that sets out their respective rights to property in the event of a separation. These agreements can help clarify each partner's rights and responsibilities regarding the shared home and other assets.
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Courts may consider whether a couple was part of a joint family venture
In the case of common-law relationships, couples are not legally required to split property acquired during their time together. Each partner in a common-law relationship is entitled to whatever they brought into the relationship or acquired during it. However, if one partner feels they have contributed significantly to the value of a shared asset, such as a home, they may seek legal recourse.
- Mutual Effort: Courts will examine whether the parties worked collaboratively toward common goals, pooled their efforts, and made sacrifices for the benefit of the family unit. This includes considering whether they had children together and if one partner took on household or child-rearing tasks that enabled the other to work or build a business.
- Economic Integration: The court will assess whether the couple had joint assets, shared expenses, and accrued common savings. They will look for evidence of financial intertwining, such as pooling funds, sharing bills, or amassing a common pool of savings.
- Intention of the Parties: The court will consider whether the parties intended to participate in economic integration and share in the wealth they accumulated together. They will examine if the parties considered themselves as a “partnership” in the social and economic sense, referred to their relationship as “equivalent to marriage," or held joint titles or tenancy to property.
- Priority of the Family: The court will evaluate whether the parties prioritized their family over their individual interests. This includes assessing if they made decisions, such as moving or changing jobs, for the sake of the family. The longer the relationship, the more integrated the finances, and the presence of children can indicate a joint family venture.
It is important to note that the determination of a joint family venture is fact-specific and can vary depending on the circumstances of each case. The party claiming a joint family venture bears the burden of convincing the court. Additionally, the specific laws and procedures may differ based on the jurisdiction, and it is always advisable to seek legal advice for one's specific situation.
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Common-law spouses do not have automatic property rights to the matrimonial home
In Ontario, common-law spouses do not fall under the property division sections of the Family Law Act and, therefore, have no right to ask for a division of their partner's property. This means that when common-law spouses separate, property remains in whoever's name it is in at the time of separation. Common-law couples are not legally required to split property acquired when they lived together. Furniture, household items, and other properties belong to the person who bought them.
Common-law couples can sign a cohabitation agreement or separation agreement that sets out their respective rights to property. This can include terms on how the value of the home will be divided upon a breakdown of the relationship or death and rights of occupancy. A common-law spouse may have a claim to an interest in a family home if they can show a specific contribution to the purchase or improvement of the property. This is called a "Constructive Trust" claim.
It is important to note that if a common-law spouse provides "sweat equity" towards any asset or property of a person, they may receive value upon separation from that effort. This includes unpaid work or money put towards the property. A lawyer can help common-law spouses understand their rights around dividing property.
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Frequently asked questions
Unlike married couples, common-law couples are not entitled to the equalization of their family property. Each partner is entitled to whatever they brought into the relationship or acquired during it. If a person is solely on the title deed of the property, the common-law spouse does not have the right to have the home put in their name. However, if the common-law spouse provided unpaid work or put money towards the property, they may have a claim to part of it.
If both partners are on the title deed, they may choose to enter into a domestic contract such as a cohabitation agreement or separation agreement that sets out their respective rights to the property.
If you have lived together for at least three years and have a child together, you may apply for the matrimonial home as part of spousal support.
On application, the court may make an interim or final restraining order against a person who is cohabiting or has cohabited with the applicant for any period of time.
