It is a popular myth that common law spouses have the same rights after living together for 3 years. This is not at all accurate.
When common law couples separate, the legislation in Parts I and II of the Family Law Act does not apply to them. These parts of the legislation only apply to spouses, which means that the couple actually have to have been legally married.
Nevertheless, a common law spouse may have property claims. If the common law spouse makes contributions to a property owned by their common law spouse, such as helping pay a mortgage, that person may be able to make a claim based on the law of equity, either as a constructive trust claim or a claim in quantum meruit.
If Maria’s lawyer can show that John received a benefit from Maria, Maria suffers a loss as a result of giving this benefit, AND there is no reason under the law why John should benefit at Maria’s expense, then the court may decide that John holds some amount of the property in trust for Maria. Sometimes the effort can be quantifiable in dollars. In that case, Maria may make a claim for $150,000.00, for example, against John because she helped look after their children and contributed to the mortgage for over 15 years. This is a constructive trust claim.
The parties do not need to have agreed that one would hold property in trust for the other, but the person making the trust claim must have some proof that their contribution of money or effort has benefited the recipient. The money received does not have to be toward originally obtaining the property [ie: a down payment]. A claim can be based on the person contributing to the upkeep or improvement of the property. Also, the case law is clear that household and childcare services can be considered to be a contribution for the purposes of a constructive trust claim against a property.
While a claim can be made for a part of the value held by the other party, the courts will not usually equalize property between the two, and divide the value of the property equally between the parties. Contributions may entitle a person to share in the property, but not every contribution entitles the person to making a claim for a 50% interest in the property.
Recent case law suggests, if the court is able to calculate a dollar value for the services delivered to the party “unjustly enriched”, it will prefer ordering that exact figure to ordering a percentage interest in the property of another.This is known as a monetary determination of the value of claim, or, sometimes, quantum meruit.
The alternative is the actual constructive trust remedy where the court orders that a certain percentage of the property should be transferred from the registered owner to the spouse making the claim. In the housing market of the last 10 years, a percentage interest in the property is often much more valuable than the dollar value of the efforts made. Usually, both should be claimed although the prevailing law at the time of writing this website (October, 2017) is that if a monetary value can be easily proved, that is often the preferred remedy.
When every attempt is made to provide helpful information in this website, you may not rely on the information above as legal advice.