Unjust Enrichment

When an unmarried couple separates, there is no automatic division of property. Each party keeps what is in his or her own name. If this result is not satisfactory, it may be possible to make a claim for
unjust enrichment. I discuss this in detail on my common law web site.

It’s important to note, however, that the claim of unjust enrichment is not limited to unmarried couples, but is often used by married couples too. Although normally the provincial statutory scheme for property division yields fair results, in cases where it doesn’t, a claim for unjust enrichment may be possible.

One of the most common uses of a claim for unjust enrichment is where the matrimonial home is in one spouse’s name. In today’s markets, real estate prices increase quickly, while divorce settlements can take years. Under Ontario legislation, the spouse who owns the matrimonial home would get to keep any increase in value of the matrimonial home that occurred between the date of separation and the date of the divorce settlement. The non-titled spouse can make a claim for a share of this appreciation in value by bringing a claim for unjust enrichment.

A claim for unjust enrichment in this case would normally be fairly strong, because regardless of the roles each spouse played in the relationship, it is likely that there was a significant contribution, financial or otherwise, to the matrimonial home as matrimonial homes are usually an important part of a couple’s life.

Another case where a claim for unjust enrichment might be made is where there is a marriage contract. If a marriage contract results in a very lopsided division of property, a claim for unjust enrichment may be a way around this. I would argue that this is analogous to a common law situation. In other words, if a claim for unjust enrichment would succeed on a particular fact situation for a common law couple, it should succeed if the same fact situation arose for a married couple with a marriage contract, despite the Hartshorne decision.

As an example, say that a couple enters into a marriage contract that provides that the wife keeps the matrimonial home when they separate, and that all other property is divided according to title. During the long-term marriage, both parties work and there are no children. During the marriage, the husband pays for all of the household expenses, mortgage, house insurance and property taxes. The wife on the other hand saves all her money in an RRSP. At the end of the marriage, the only assets are the matrmionial home and the wife’s RRSP. Under the terms of the marriage contract, the wife would get everything. I think that the husband would have a good claim for unjust enrichment in this case.


  1. Guyto Anderson says

    Hi Jeff,

    Can there be unjust enrichment or a claim for compensatory support in the following case?
    1) the husband got a PhD, a job, a house, and a mortgage prior to the marriage
    2) the wife had nothing but an MBA with no residence or citizenship in Canada.
    3) The wife had no job for almost 6 years
    4) There is one child of the marriage who is 9 years old
    5) The husband paid for everything including the CGA program of the wife and full-time daycare for the child.
    6) the wife found a job in 2011, and is currently working as an accountant earning $2000 more per year than the husband.
    7) All money earned by the wife was put in an account under the name of the wife only as saving for the family
    8) The wife filed for divorce, took the kid, all the money, and claim 50% share of the house.

    The couple resides in British Columbia. Any comment is greatly appreciated.

  2. Cathy Brims says

    I found out that my ex husband put $70,000 down on a house for his mistress and him to live in while we were still legally married. We were married 30 years on the sale of our Matrimonial home he had me listed at the property he was living with his mistress. I was living 8n another city at the time. Also my parents inheritance went into reducing the mortgage. I did not get one cent of that back. In my settlement the only thing I received was half t3 sale of our house. Nothing for contents, car or a cent of support. He remarried and lives I luxury while I sm living on a limited income. I want to know if there is any possibility of suing him.

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