Who Gets The House When Common-Law Couples Split?

It may be the law that the answer to this question is generally the owner of the property, but many common-law spouses are not finding that solution fair.

As more couples decide not to get married, a legal group in Alberta is highlighting the need for improved legislation over the ownership of property. Because it’s easier to end a common-law relationship, there is a rise in break-ups for these types of couples, but with few protected rights. It’s important to know what the current laws are, and what legal options you have if you are not the legal owner of a shared home with your partner.

The Alberta Law Reform Institute

A new report from the Alberta Law Reform Institute says that their provincial legal system should implement changes to protect the rights of common-law couples. The report claims that giving common-law couples the same or similar rights as married couples would:

• Reduce the amount of cases that end up in court
• Reduce the time it takes to assess a common-law relationship regarding issues of ownership and property rights
• Reduce the miscommunication and miseducation around the rights of common-law couples versus married couples

Current Laws For Common-Law Couples

The matrimonial home is the family home a married couple shares. When married couples divorce in Alberta, this home is divided between the two spouses. Since common-law couples are not married, there is no designated matrimonial home and whoever the owner is on title gets to keep the property.

Because there is not legislation that protects the rights of common-law couples, many cases have to rely on common law principles, such as unjust enrichment or a substantial disadvantage to the non-owner.

What is Unjust Enrichment?

Unjust enrichment is when you may have contributed to the home – such as remodelling the backyard or finishing a basement – that increases its value for the owner. Upon separation, the owner would be the sole beneficiary to this increased value, while you may not receive any compensation.

The Case For Improved Legislation

Cases are often decided on a situational basis, in some situations analyzing very personal details of a couple’s relationship. This can prolong separation proceedings for couples for months. However, giving more rights to unmarried couples regarding property division may better serve the legal system by reducing the length of separation cases.