By Jillian Toonders
A common myth in family law is that common-law couples have the same rights as married couples if a relationship breaks down. This is not true, especially when it comes to property division.
In Nova Scotia, common-law couples are not included as “spouses” under the Matrimonial Property Act, the legislation that divides the property of married spouses. Instead, common-law couples, subject to those registered as Domestic Partnerships under the Vital Statistics Act, discussed below, are left to rely on a patchwork of legislation and legal principles for property division.
If there is real property, such as a house, that is held jointly, a common-law partner may rely on a piece of legislation called the Partition Act to bring an application to the Supreme Court. A judge can order that a jointly held property be sold and the money from the sale be divided between the owners.
For most other property, common-law couples must prove their entitlement to the property under the principle of “unjust enrichment” and the concept of a “joint family venture”.
Unjust enrichment is when one partner gains a benefit at the expense of the other partner and there is no legal reason for the benefit. The person claiming unjust enrichment must show:
- that the former partner received a benefit,
- that they suffered a loss related to the benefit, and
- there was no legal reason for the benefit and loss.
The partner can also show there was a joint family venture; basically, did both partners contribute to the partnership and any increase in wealth during the relationship? A court will look at elements of the relationship, such as economic integration, the intention of the spouses, the mutual efforts of the parties, and the priority of the family. The more the relationship looks like a “traditional” marriage, the more likely a joint family venture will be found.
If a partner is found to have been unjustly enriched at the expense of the other, the claiming partner may receive a percentage of the assets. The amount they receive will depend on the facts of each case.
Unlike with married spouses, there is no presumption of equal sharing for common-law couples. Common-law property division is complicated and fact specific, and you should speak to a lawyer to help you navigate the process.
There are a couple of things common-law couples can consider to reduce the uncertainty of a relationship breakdown in advance:
- Get a Cohabitation Agreement. A Cohabitation Agreement can be a comprehensive way to decide in advance how your property will be dealt with if you separate. If you never need it, then that’s great; but if you do, a properly drafted agreement can help minimize the stress and uncertainty of an already stressful situation.
- Register as a Domestic Partnership with Vital Statistics. In Nova Scotia, common-law couples can register as a domestic partnership with the provincial government which gives the partnership similar rights and obligations as a married couple. Remember that, like a marriage, registering your partnership will change the legal framework that applies to your relationship.
We recommend speaking to a family lawyer to fully understand the implications of any chosen relationship status and how the law applies to your specific situation. Every relationship is different, and it is important to find a solution that works for you!
This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.
