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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 11-27-2015, 01:11 AM
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Hey All,

I have been trying to find my exact situation for sometime, but can't. Or maybe it is just me in denial... Anyhow, hopefully someone has some insight.... here goes...

My spouse and i have been together for 18 years as a common law couple and have decided to separate. We both work and we have 2 kids. I make about 60% of the family income.

About 11 years ago, my father passed away and left me with some money. Since then, I have used the money to pay off hers and my debts (several thousand) and to buy the house we are currently in and improve it. We bought it about 9 years ago and is in both our names.

This is where i don't have a clear view in my head on if i can retrieve any of that inheritance money out of the house. She put no money in the down payment and I put 45,000.00 of inheritance money down. In the first few years, I spent an additional 25,000 of inheritance money on home improvements.

As much as it pains me, I can understand why i cannot get the 25000 back in home improvements, and paid off debts 10 years ago. Its just too hard to track. But is it possible to be able to keep my down payment of 45000 in asset value of the house?

Ideally, I want my kids to stay in the family house as its less stressful on them. My spouse wants to move further away anyhow.

Yes, I was so naive to allow my inheritance to be so attached to my spouse.... but does anyone see a light for me or do i really have to give her half my inheritance money in the house?

Thank you in advance! I honestly never thought I would be asking these questions.
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Old 11-27-2015, 11:19 AM
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The reason you can't get a clear view is that this is an extremely foggy area in family law.

The strict letter of the law says that as soon as inheritance money is commingled into a family asset (like a shared home), it is no longer an inheritance but family money and would be divided upon separation.

However, if you have documentation that traces exactly where the inheritance went, you might have a case for getting it back. Did the money go right into a joint account and sit there for a while? Did it go into an account in your name only and get moved directly to the bank from that account at the time of the house purchase?

You also have an edge because you were never married, only common-law, so you never became a legal single financial entity. In your situation, it could be less of a fight to demonstrate why each of you should receive an unequal share of the home.

Also, it's all about your ex and how reasonable she may be. Make her an offer that keeps you two out of court if she acknowledges that the source of down payment was from the inheritance and you want $45k back. Point out that your inheritance was much greater than that, and you are not going to fight to get the entire thing back if she agrees.

Each of you is basically fighting over $22.5k. You each have to decide what your limit for the emotional and financial drain fighting for it would be.

Search CanLII for cases that are similar to yours and see what the outcomes were. Some good keywords to search on might be "common-law" "inheritance" "commingled"
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Old 11-27-2015, 08:22 PM
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No the money was never put in a joint situation with her. It went from basically my savings account directly into the down payment. I have yet to talk to her about this. I suspect that she will get upset with me as she will feel entitled to it even though she has been enriched by the rest of the inheritance that i cannot trace.

I will look closer at CanLII ...

Thank you for your time.
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Old 11-27-2015, 11:21 PM
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Separating the finances should actually be fairly easy, peasy for you.

What is your province?
And how is the title to the house registered --- to one person, or in both names?
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Old 11-27-2015, 11:44 PM
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Quote:
Originally Posted by mcdreamy View Post
Separating the finances should actually be fairly easy, peasy for you.

What is your province?
And how is the title to the house registered --- to one person, or in both names?
I live in Ontario, but our finances are joint now. The house is also held in both names.
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Old 01-02-2016, 10:40 PM
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Quote:
Originally Posted by Dahunt View Post
Hey All,

I have been trying to find my exact situation for sometime, but can't. Or maybe it is just me in denial... Anyhow, hopefully someone has some insight.... here goes...

My spouse and i have been together for 18 years as a common law couple and have decided to separate. We both work and we have 2 kids. I make about 60% of the family income.

About 11 years ago, my father passed away and left me with some money. Since then, I have used the money to pay off hers and my debts (several thousand) and to buy the house we are currently in and improve it. We bought it about 9 years ago and is in both our names.

This is where i don't have a clear view in my head on if i can retrieve any of that inheritance money out of the house. She put no money in the down payment and I put 45,000.00 of inheritance money down. In the first few years, I spent an additional 25,000 of inheritance money on home improvements.

As much as it pains me, I can understand why i cannot get the 25000 back in home improvements, and paid off debts 10 years ago. Its just too hard to track. But is it possible to be able to keep my down payment of 45000 in asset value of the house?

Ideally, I want my kids to stay in the family house as its less stressful on them. My spouse wants to move further away anyhow.

Yes, I was so naive to allow my inheritance to be so attached to my spouse.... but does anyone see a light for me or do i really have to give her half my inheritance money in the house?

Thank you in advance! I honestly never thought I would be asking these questions.
If it could not be separated, could i go after "unjust enrichment?"

thanks again...
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Old 01-03-2016, 01:15 AM
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My understanding is that for a married couple in Ontario the matrimonial home is split in half no matter where the money came from and whose name it is under.
This means that even if the home was given to you by you father, your wife would still get half. as long as it is matrimonial house it is 50/50.
If you are common law, you are allowed to claim unjust enrichment.
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Old 01-03-2016, 01:17 AM
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Continued but it is up to you to prove the unjust enrichment which can be difficult. (i went through that).
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Old 01-03-2016, 07:35 PM
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My understanding of "unjust enrichment" is that in order for such a claim to stick, you need to show not only that the other party benefited financially from your sacrifice, but also that you suffered a corresponding loss, and that there is no implied or actual contract between the two of you which could have justified this division of benefit and loss.

I would think that in a case in which your inheritance was used to buy and renovate a house for both of you, it would be difficult to make the case that you had suffered a loss corresponding to your ex's benefit (because you owned and lived in the house for nine years too - it's not as though you used your inheritance to purchase or renovate an asset which belonged solely to your ex, so that you never obtained any benefit from your inheritance.

I'm guessing it would be very difficult to make an unjust enrichment case in these circumstances, but I am not a lawyer and could be completely wrong.
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Old 01-04-2016, 06:40 PM
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Thanks for the input all. It's very much appreciated!
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