Common Law Couple home ownership

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Couples that live together without being legally married are often under the false impression that they have the same property rights as their married counterparts….but they may not.

For starters, to qualify for equal ownership of the house, building or property, you need both of your names on title. You also need to sign a cohabitation agreement that includes that provision or a court makes the determination. Without these legal documents signed, sealed and delivered, a partner or ‘spouse’ is only entitled to support and not a division of the property.

Defining your rights and responsibilities is key in a cohabitation arrangement especially if either of you entered the relationship with valuable property that you acquired on your own without the assistance of your current partner.

There seems to be plenty of confusion around the legal definition of what constitutes a common law relationship. Many think you are deemed a ‘common law spouse’ after living together for one year, but under the Ontario Family Law Act, spouse is defined as a person who has cohabitated continuously for not less than three years. You’re also deemed a spouse if you have a natural or adopted child together.

If your name is not on title and you haven’t signed a cohabitation agreement, there is some legal recourse especially for those involved in lengthy common law relationships. It’s known as a constructive trust claim. If one party demonstrates that the other received a benefit and suffered a loss as a result of the other receiving the benefit then the court may determine that the person suffering the loss is owed by the other party. Bear in mind, that these claims are tough to make and not always successful.

Since unlike marriage, there is no automatic legal right for common law partners to share in the value of each other’s property once the relationship breaks down ensure that you’re a) either okay with that eventuality or b) not okay with it. In that case, get your name on title and make sure you and your partner sign a cohabitation agreement.

For more information on Family Law, please visit the Ministry of the Attorney General website at www.attorneygeneral.jus.gov.on.ca/english/family.

Jennifer Birch

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