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The division of property in a common-law separation

There are numerous reasons why a couple might choose to avoid marriage and pursue a common-law relationship. Unfortunately, when that relationship ends, these individuals might face some of the same difficulties in property and debt division that married couples do.

While the process might be similar in some instances, a married couple and those in a common-law relationship must approach the division of property and debt from different perspectives. Upon separation or divorce, a married couple will usually share the value of their property. A common-law couple will usually keep:

  • The property they had when they started the relationship
  • The property they acquired while they were living with their partner

They will typically only share the value of property they specifically owned jointly. This would include, for example, a jointly maintained bank account. Additionally, if both partners jointly owned a car, there might be another layer of complexity. Often, partners will either sell the car and split the proceeds, or one partner will “buy out” the other based on the agreed-upon value of the vehicle.

Are there exceptions?

There are some situations in which one partner might make a claim on the other partner’s property.

  • Unjust enrichment: This is a term used to describe a situation in which it would ultimately be unfair to allow one partner to leave the relationship without sharing certain property. In this scenario, one partner will have to show that they contributed to the property, that the other partner benefited from this contribution and there is no reason for your partner to keep this benefit.
  • Resulting trust: This is a term used to describe a situation in which a certain property is in your partner’s name but is really your property.

Common-law separation can be a complex matter. In most situations, they are best handled under the care and guidance of an experienced family law professional.

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