Property Rights For Common Law Spouses Not Same As For Married Couples

By Thora Espinet
PRIDE Guest Columnist

More and more couples are now avoiding the bonds of marriage, and instead are opting to live in common law relationships.

In most case they assume that they have the same property rights when they separate as married couples. This is not the case.

The regime for the division of property is set out in the .Family Law Act, and does not apply to common law spouses.

Any property, as well as any the increase in the value of any property brought into a relationship and owned by that party, remains the property of the party who brought it into the relationship.

It is not divided on separation, unless the parties agree otherwise. If, however, the parties purchase property together, there may be a claim division or compensation for the individual’s contribution to the acquisition of the property.

This is usually by the party providing proof of purchase, or if the property is inherited, by providing a copy of the Will.

There are instances where one party may have a claim against the other, and that would involve any contribution the individual made towards the other either by way of work or renovation or money.

The court would consider whether the other party has been unjustly enriched by the contribution of the other.

If property is purchased jointly, it is advisable that the parties provide a method which shows the amount of the contribution which was made to the acquisition of the asset in question.

This can be done by way of a percentage share for example each party contributes equally. In every case the partly claiming any right must be able to provide proof.

When considering entering into a common law relationship, the parties may wish to have domestic contract which sets out their rights and obligations during their cohabitation and upon separation.  

Thora H. Espinet is a local lawyer, who has been practicing family and criminal law since 1984. She can be reached at (416) 321-2631.