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When does common-law get treated like marriage?

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  • When does common-law get treated like marriage?

    Abbreviated story:

    Moved in together in 2000.
    Bought a house together in 2001 (both on the mortgage).
    Had two children in 2004 and 2005.
    Sold the house in 2007.
    Separated in 2009.

    Almost all debts in that time were in my name because he was self employed and had bad credit.

    My question is - would the courts treat us as married or common-law in this situation? Since I earn more would I be on the hook for spousal support? Our income split is about 60/40.

  • #2
    You are never treated as married for anything other than spousal support.

    As far as the house goes, you should each get out what you put in. If it's paid off, you should split it according to how you paid for it. It is simply a joint investment.

    As far as the kids go, child support will be paid according to the table amount and according to whatever custody situation you two agree on.

    With 60/40 income proportion, I seriously doubt that any spousal would be paid, but it could depend on other factors and on how much child support is being paid. However if he has been employed all along he has no real claim for support.


    • #3
      How about if you're common law for the first half of your relationship, and married for the second half?

      I lived with my common law partner for 5 years in my house, which I bought on my own (provided down payment, made all mortgage & PT payments, paid the lion's share of other house related bills, was alone on kids at the time. She worked full time hours. She did household chores, bought groceries and paid a $20 monthly security bill.

      We got married, and were married for 5 years (together for 10) until we separated. We had one child during this time and we both worked full time hours.

      I was under the impresion that everything becomes divided 50/50, at the time of marriage. Assets acquired during common law, belong to the person that owns it. I understand the concept of constructive trust/unjust enrichment....and I'm perfectly willing to negotiate on issues that she made contribitions to (house-yes, investments & pension-no)

      We went to a DRO, to talk about some of these non-matrimonial properties and we were told that because we got married, that we both "waived all right to property acquired before marriage". I had other family lawyers shake their heads and say that is not true.....

      Does anyone have a definitive answer or experience in this matter??

      Canada Gold 2010


      • #4
        The lawyers are correct (you don't say what province you are in but you should accept a lawyer's advice ahead of a mediator), however if you are going to use dispute resolution that means coming part way on your issues. You may offer to include some pre-marriage property, she should balance that by not demanding everything.

        In Ontario, the house would be 50/50 as it is the matrimonial home, no matter how much you paid before marriage. For other assets and property, you will look at the amount it gained in value, or that assets grew, or savings built up DURING THE MARRIAGE and subtract any debt that accumulated during the marriage. This is the amount for equalization.

        She has no constructive trust on the home, it is the matrimonial home, it is 50/50 no matter what so keep things simple and treat it that way. Do an equalization calculation on your other property and assets accumulated during the actual marriage and make an offer based on that. If you want to be flexible that is great, but start with an offer by the book, and work from there.

        The years of common law relationship only count for spousal support calculations, if she is even seeking spousal. If she was employed consistantly she may not even have entitlement.


        • #5
          Thanks Mess,

          I'm in Alberta; I think things are a bit different as far as the matrimonial house is concerned? My lawyer told me that the only way she will get any equity from the house for the time we spent common law would be:

          1. Negotiate for it
          2. File an unjust enrichment claim against me

          She has slapped me with the unjust enrichment claim for the 4 years and 4 months we spent in my house (before it became the matrimonial home), however, we are now in settlement negotiations. I'm hoping I can trade off this equity ($80,000 built up during time common law), in exchange for her waiving spousal support.

          She's worked full time hours the entire 10 years we were together. Our income ratio is currently 66/34........and she's slapped me with a ludicrous claim for SS.

          Canada Gold 2010


          • #6
            The SS if you were to pay wouldnt be for long for 10 yrs together. Just a thought before you give up thousands.


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