There are very concrete rules in place when it comes to property division when a married couple divorces. But how does property division work for common-law couples who choose to separate?
In Canada a couple is considered to be common-law when they are in a conjugal relationship have lived together for at least one year.
The law and process for them is different from a married couple and can be quite complex. The couple may have to provide extensive accounting evidence for what they paid for during their common law relationship. This accounting exercise can go back decades and it can be very difficult for couples to determine their intent regarding the purchase and sharing of property many years in the past.
The court will have to decide whether the house they live in and other assets are a joint family venture. Even if the house is in only one spouse’s name the other spouse has likely contributed to it through upkeep, renovations and the rearing of children throughout the years. Courts will decide whether the home and other assets are a joint family venture by looking at several factors:
Have the parties worked together towards a common goal as it pertains to the property? This can include a pooling of efforts and team-work, the decision to raise children together and the length of the relationship.
The more extensive the integration of the couple’s finances, economic interest and economic well-being the more likely it is that they should be considered as having been involved in a joint family venture.
Did the parties intend to form a joint family venture? These intentions may be shared, stated or inferred through the party’s actions. Did the parties state that they considered themselves to be the equivalent of married to others? Was the relationship long and stable?
Priority of the family
Did the couple plan for their financial future together? Did one party give up their employment for the sake of the family? Is one party left in a worse position than they would have been if they had not acted in a way to assist the family?
Mutual benefit conferral
The respective contributions of the individuals are taken into account in determining each party’s share. However, the weighing of benefits is not an exact science. It calls for the exercise in judgement considering circumstances and all evidence. Benefits are not always monetary and can include things like labour and time raising the children.
If a court decides there is a joint family venture they will then decide on the appropriate remedy. When it comes to this courts have significant discretion and can award either spouse 1-100 per cent of the property depending on the case.
If you are looking at a common law separation it is important that you have all the proper documentation to show the impact you have had on your possible joint family venture. Talk to a lawyer about preparing the necessary documents to ensure you come away from the separation with what you deserve.