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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 06-26-2016, 10:01 PM
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Default Common Law division of home...

In my search, I came across this thread.

http://www.ottawadivorce.com/forum/f...48/index2.html

I am in a similar situation and want to see if there are any new thoughts.

In 2002 I sold my house and purchased a new home with my common-law partner.

I put $200k down on a $400k house, which was in both our names. I put the large downpayment down to keep the mortgage in a range we could afford.

Over the course of the next 13 years, we both paid the mortgage and bills equally. She left in 2015 and we are still working to settle everything.

The only point of contention, is the downpayment.
I was under the impression that in a common law situation, except for claims of unjust enrichment, etc...we generally leave with what we brought.

What happens to the downpayment?

If the house is worth $450k...with a $100k mortgage +line of credit $50k used for repairs...

$450k-$200k downpayment=$250k-$150k mortgage=$100k which would get distributed equally or is there another calculation?

I'm confused and want to get others thoughts.
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Old 06-27-2016, 12:23 AM
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That sounds right to me. Things only get weird with the home if you are legally married. Your ex may be fighting it because she's confused with the other situation, or simply because she thinks you'll cave in if she's obstinate enough. She's a 50% owner of the house on paper, so she thinks she gets 50% of the value. Where does the timing of the house purchase figure into the date of relationship start and end?
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Old 06-27-2016, 05:28 AM
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She moved into my home 3.5yrs prior to the house purchase of the home together.
The relationship ended 13yrs after the purchase.

Part of the confusion, is that her lawyer is asking for the world, and the lawyers I have consulted with, said that the divison of the house would be 50/50 and downpayment lost...it doesn't make sense to me.
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Old 06-27-2016, 12:23 PM
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Where do you live? I think in Quebec, due to some recent cases, common law is treated more like legal marriage.
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Old 06-27-2016, 02:14 PM
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In marriage it would be lost and the house is split 50/50 this is the law of the "matrimonial home" but if you are not married this law does not apply since it is part of the divorce act, not the family law act.

You each get what you put in, including the down payment, and split the gains if any. You may compromise and accept, say, only HALF of the down payment back but this would be negotiated it isn't part of the law. It is very important that you be able to PROVE your claims with paperwork from when the home was purchased. Evidence matters (eventually).

Lawyers will write and send whatever their clients tell them to. Do not take legal advice from the other parties lawyer or even assume they are doing the correct thing. They are in it to win everything they can for their client at any cost. If they can convince, scare, trick or threaten you into giving it up, that's completely legal.
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Old 06-27-2016, 03:32 PM
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I'm in Ontario.
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Old 09-29-2016, 04:10 PM
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Quote:
Originally Posted by thissucks View Post
The only point of contention, is the downpayment.
I was under the impression that in a common law situation, except for claims of unjust enrichment, etc...we generally leave with what we brought.

What happens to the downpayment?
There is no division of property in common law relationships, but your situation doesn't technically involve the issue of common law vs. marriage; rather, her name is on the deed, so she is a legal owner of that property and she gets a slice of the pie.

When you purchase property with someone else, there are different ways to arrange the ownership between the parties. One example is joint tenancy whereby each owner shares an equal interest. Another example is tenancy in common whereby the owners share an unequal interest in the property.

What form of ownership did you enter with your ex?

I suspect you purchased the home with her under a joint tenancy ownership arrangement, which means she owns 50%, including your down payment.

If you wanted your ownership percentage to reflect your down payment, then that could have been arranged with a tenancy in common ownership arrangement.
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Old 10-04-2016, 03:25 PM
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Ok boys and girls, there's a lot of misinformation being spread around here, so let's take it one step at a time.

Quote:
In marriage it would be lost and the house is split 50/50 this is the law of the "matrimonial home" but if you are not married this law does not apply since it is part of the divorce act, not the family law act.
Actually property division is from s.5 of the Family Law Act, not the Divorce Act. However, Part I and II of the Family Law Act (which deal with property division and the matrimonial home) have a different definition of 'spouse' than Part III of the Family Law Act (which deals with support). While this is a technical difference that doesn't change the crux of your point (that only married couples enjoy rights of property division), it's important to be accurate.

Quote:
I suspect you purchased the home with her under a joint tenancy ownership arrangement, which means she owns 50%, including your down payment.
On paper yes, but OP actually has a constructive trust remedy at play here. He can (and should) argue that due to his substantial downpayment, he actually owned a much larger percentage of the house than 50%, and that when the house is sold he enjoy the lion's share of the proceeds.

OP, you're taking about a lot of money here. Talk to a lawyer who only does family law, and don't listen to someone who insists you have property division in a common law situation - they clearly don't know what they're talking about.
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Old 10-04-2016, 03:54 PM
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Quote:
Originally Posted by Kinso View Post
On paper yes, but OP actually has a constructive trust remedy at play here. He can (and should) argue that due to his substantial downpayment, he actually owned a much larger percentage of the house than 50%, and that when the house is sold he enjoy the lion's share of the proceeds.
I get what you're saying, but it's more than "on paper". The paper you are referring to is a legal document of property ownership. Therefore, provided they entered a joint tenancy arrangement, she legally owns 50%. That will only change if a judge determines otherwise. He can argue for a constructive trust, but there is no guarantee that he will be successful.
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Old 10-04-2016, 04:02 PM
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Quote:
I get what you're saying, but it's more than "on paper". The paper you are referring to is a legal document of property ownership. Therefore, provided they entered a joint tenancy arrangement, she legally owns 50%. That will only change if a judge determines otherwise. He can argue for a constructive trust, but there is no guarantee that he will be successful.
So it's a very important piece of paper .

Of course you are correct, he will need to demonstrate the constructive trust exists, but he has a strong argument.
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