Does My Common Law Spouse Get The House?

One concern clients have when it comes to ownership of the home on separation is: who is going to take the house when we separate? Will my common law spouse be able to take the home from me?

The quick answer to this is: probably not.

What this means is that if a person is solely on title to the property, the common law spouse does not have rights to have the home put in their name.  On first glance (or what we lawyers call prima facie) the common law spouse on separation is not entitled to own the home.

This is different from married couples who DO have automatic property rights to the Matrimonial home.  See our post on the difference between common law and married spouses, and our post on separation and the matrimonial home for more details regarding this.

As stated in our Separation and the Matrimonial Home post, “Common law couples only have property rights as far as their title interest goes.  If you are common law, and you are not on title to the property, you will have to consider other equitable remedies such as a constructive trust or resulting trust claim through litigation if you want a part of the home.”

This means that the common law spouse will have to demonstrate that they either provided some value to the property that would justify them being repaid for that effort (constructive trust), or that there was some agreement between the parties that value from the property would be returned to them (resulting trust).  These two remedies are based in the principle of Unjust Enrichment.

The three requirements for unjust enrichment were established in cases such as Kerr v. Baranow, 2011 SCC 10.  For an unjust enrichment to be established there must be:

  1. An enrichment;
  2. A corresponding deprivation; and
  3. An Absence of any juristic reason for the enrichment.

One classic example of this comes from Pettkus v. Becker, [1980] 2 S.C.R.834.  Here a husband had purchased a farm with a beekeeping business.  He was able to operate this business successfully due to the unpaid labour from his wife who received little or nothing in return over 19 years.  The court found that there was a definite connection between her contributions and the husband’s acquisition of assets over the years.  As such, the wife was successful in establishing unjust enrichment.

What this shows is that these remedies are applicable to other assets and property and not just the home.  If a common law spouse provides “sweat equity” towards any asset or property of a person, it is possible that they could receive value on separation from that effort provided.

It is therefore crucial that separating common law spouses speak with a lawyer regarding property concerns, ESPECIALLY if their common law spouse provided unpaid work or even put money towards that property.