How To Divide Common-Law Property
Dividing Common-Law Property – What Is Fair?
Unlike persons divorcing after a marriage, individuals in a common-law relationship are not presumed to have any right to claim their partner’s property. Common-law property is divided according to the legal principles of constructive trust and unjust enrichment.
You must first establish that you were living in a common-law relationship. Legally, common-law partners are known as an Adult Interdependent Partners according to the Adult Interdependent Relationships Act of Alberta.
You must be able to show that you were in a relationship of interdependence” meaning a relationship outside marriage in which any 2 persons share one another’s lives, are emotionally committed to one another, and function as an economic and domestic unit. The existence of a common-law relationship is highly dependent on the context of the circumstances and nature of the interactions between two non-married persons.
If you are legally considered common-law partners (or Adult Interdependent Partners), one of the partners may be entitled to a remedy based on unjust enrichment if he or she can establish the three elements of an unjust enrichment: an enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment.
There are many court cases that have dealt with this topic, and Darin can help you understand how the cases and the law apply to your unique situation. Ultimately, the test is one of fairness – has one partner benefitted from the other without reason?
The Supreme Court of Canada has said that childcare and housekeeping are valuable benefits that can be compensated for after separation Peter v. Beblow, 1993 CanLII 126 (SCC).
When two people live together as a common-law couple and each contributes goods, services or money to the relationship, it must be determined who has contributed more. If one person contributes more, they should be compensated.
However, when a couple live together for some time, it is natural that one will provide some goods, services or money, and the other will provide other goods, services or money. One may shovel the walks and another wash the dishes. One may raise the children and administer the home and family, the other earn money. If their contributions are about even, no one is hurt and there is nothing to remedy. In principle, there is no unjust enrichment. Kazmierczak v. Kazmierczak, 2003 ABCA 227 (CanLII).
This is a complicated area of law that can be made much easier and less stressful with the help of a lawyer who can advise you on your unique situation.
Contact Darin O Wight Law Office in Medicine Hat, AB for more information.