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Will you get a fair share if your common-law relationship ends?

If you are in a common-law relationship that is close to breaking down, you might have concerns about the potential division of property and debts. Many Ontario couples choose not to marry, thinking it would be easier to end a common-law relationship than to go through a divorce. However, it could be more challenging because cohabiting spouses have less protection than those who chose a legal marriage.

You will likely have many questions about the financial and legal impact of separation from a common-law partner. The laws treat child-related issues similarly for married and unmarried parents because the best interests of the child form the basis. However, spousal support eligibility will depend on various aspects of your unique situation.

What will happen to your property?

Unlike married couples who generally split the value of family property 50/50, common law spouses keep what they brought into the relationship and any property they bought on their own during the relationship. Any property they bought together during the relationship gets divided in half.

As an example, funds in your personal bank account will remain your property while half of the funds in a joint account will also be yours.

Some assets are more complicated to divide. These could include jointly owned vehicles and real estate. Negotiations or mediation might lead to an agreement about a fair division of such assets. The easiest potential solutions could be for one of you to buy the share of the other, or for you both to sell these particular assets altogether and divide the proceeds.

What about unjust enrichment?

A claim of unjust enrichment is an exception to the above rules. Although it could be valid, such a claim is never easy to prove. If you believe you have a right to a share of property that your common-law partner claims to be his or her personal property, you will have to show the following:

  • You made a significant contribution to the property in question.
  • Your contribution benefited your partner.
  • There is no valid reason for the other party to maintain sole ownership.
  • You can prove that although the property is in the name of your partner, it rightfully belongs to you.

How do you deal with debts?

Each party will be responsible for his or her individual debts. As in any case of two people signing a debt or loan agreement together, the creditor will hold both parties responsible — even if only one party benefited from it. However, if you were proactive, you might have a cohabitation agreement that you signed at the start of your relationship that will direct debt and property division. Otherwise, the two of you still have the option to sit down and draft a separation agreement in order to devise a fair division plan.

What about other legal intricacies?

You might find comfort in learning that an experienced lawyer can provide the necessary support and guidance — even if you do not intend to go to court. A lawyer can make sure you claim your share of the property within the allowed time limit. However, if it is necessary to resolve some issues in the court, your lawyer can ensure you file your claim in the appropriate Ontario court, and he or she can advocate for you throughout ensuing legal proceedings.