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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 01-10-2010, 08:43 PM
amdfanatic amdfanatic is offline
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Question Unfaithful spouse in common law marriage?

Hi, I am going through a seperation with my girlfriend. We have been in a common law for 5 years straight. We were separated for a period of one year and got back together at the beginning of 09. Around the summertime she broke things off again. Recently I have discovered she has been with another man for quite some time now. Since she is unfaithful does the same concept apply as an official marriage where she is no longer entitled to anything?If it so happens that we can't settle it peacefully how would the court deem what we each get to take possession of? How does the seperation work. I don't have receipts for any of my purchases neither does she but we both know what we both own. Also, for the 5 years we were together, the deed for the house was in both our names. When she moved back in she took her name off of it in case I failed to make the mortgage payments. Is she still entitled to half of its value once as it sells? On average how long would it take for the wheels to be set in motion if we decide to go to court? Any reply would be greatly appreciated. Thanks all!
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Old 01-10-2010, 08:58 PM
standing on the sidelines standing on the sidelines is offline
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where did you get the idea that if a married spouse fools around that they are not entitled to anything?? You are misinformed there.

The best thing to do is make a list of what you both agree belongs to the other person. The stuff that is disputed I would put the names of the stuff on pieces of paper, put the papers in a hat or something and then take turns drawing items.

Is her name off both the deed and the mortgage? When she had her name taken off the deed, did you give her any sort of compensation?
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Old 01-10-2010, 09:04 PM
amdfanatic amdfanatic is offline
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I guess I was misinformed. So basically her being with another guy is completely irrelevant and doesn't affect assets in anyway? Her name is off of both. I didn't compensate her and the thing is she paid it in full for about 3 years so in court would she be able to prove unjust enrichment based on the fact that I haven't compensated her and she made a large portion of the payments for a given time?
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Old 01-10-2010, 09:05 PM
amdfanatic amdfanatic is offline
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And the thing is she is trying to say she wants everything thats valuable so if somehow the drawing paper out of hat doesn't work, how would the court deem who gets what? Also I know her boyfriend comes over when i'm not home. Do I have any legal right to not allow him on my property since its no longer in her name even though it is "our" house?

-Thanks!
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Old 01-10-2010, 09:17 PM
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I think that you should want to split the value of the house with her, because it will save you a lot of court costs and it is pretty much the right thing to do anyway. You can niggle about taking her name off or what amounts you paid in, but let's face it, she bought in, you were living common law, you knew you were living common law, you should have compensated her when you split the first time.

Reaching an amicable settlement will cost you next to nothing. If you have to duke it out in court it will cost you the full value of the house. Not kidding here, this is what happened when my parents divorced.

As far as division of other property, you own the stuff you bought, make a list and be as fair and honest as you can. You know what she bought, make your own list. Items you both bought together, how many and how much and do you really need to keep them? Tell her the same thing I just told you, that if you can work it out between you it will cost you NOTHING. Even if you stay out of court but get lawyers writing goddamned letters back and forth, it will cost you $100's of dollars a month.

You have the simplest situation, it would only be simpler if you'd rented. You aren't married, you don't have children, just get the divorce book and cd that's on the rack at Staples and run off your own agreement.

If you think she's being unfair about items she wants, total it up and then think about the $300 per hour you will pay a lawyer.
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Old 01-12-2010, 01:09 AM
amdfanatic amdfanatic is offline
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any other input? I really am curious about the fact that a spouse being unfaithful is irrelevant when the courts decide on possessions. Any other opinions or facts are greatly appreciated.
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Old 01-12-2010, 07:37 AM
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Unfaithfulness makes not one whit of difference in determining division of assets. Period.

If she were living with the other guy outside the marital home, it may make a difference in terms of determing the date of separation. In your case, it matters not. Move along

She's entitled to half of everything purchased during the time you were together. If you really want to be over and done with her, then suck it up, split things down the middle and give a little on some items (to get a little? or just to get gone...either way, like Mess has already told you...take 200-400/hr and figure 5K+ retainer if it gets messy and you need to go to court over it)
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Old 01-12-2010, 09:28 AM
Foredeck Foredeck is offline
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I was married and my ex was unfaithful. I have fairly strong proof of it, however, for division of assets it has absolutely no weight.

I've read hundreds of court cases on canlii, hoping to find anything to help me, and in many cases the judges sympathizes with the spouse that was a victim, however, they state that being unfaithful has no effect on their ruling.

However, and this is big in some cases, being unfaithful can diminish spousal support in some specific cases. In my personal case, she was unfaithful, and moved out of our home and in with her new partner. In this case, I have a strong argument that spousal support should not be awarded because she entered a new relationship.
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Old 06-28-2011, 03:28 PM
HappyMomma HappyMomma is offline
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They weren't married, they were common-law. What's his is his and what's hers is hers. Debt included.

Because her name was on the house she will need to be compensated for her half of the value. Otherwise what he bought, he owns, and vice-versa.
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Old 06-28-2011, 04:59 PM
HammerDad HammerDad is offline
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Quote:
Originally Posted by amdfanatic View Post
any other input? I really am curious about the fact that a spouse being unfaithful is irrelevant when the courts decide on possessions. Any other opinions or facts are greatly appreciated.
Canada is a "No Fault" country, meaning it doesn't matter what the reason for divorce is, there is - no fault - on either party. As such, neither party will be penalized for their actions by, lets say, an unequal division of property.

Notwithstanding that, infidelity has ZERO to do with property division in the few places where there is at-fault divorce. In cases of at-fault divorce what is at question is entitlement to alimony.
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