What rights do common-law spouses have to property in the other’s name? Donovan and Kristen live together and have built up a successful cattle operation from scratch. The land is in Donovan’s name. What are Kristen’s rights?
Mark and Kara also live together. Mark had a farm before he met Kara. They are living together. Kara looks after household duties and Mark’s children from a previous relationship while Mark tends to the farm. What are Kara’s rights in this case?
In December 2002, the Supreme Court of Canada again ruled on the property rights of common law spouses. In three previous rulings the court held that common law spouses were entitled to property rights, based on the contribution that each spouse made, even if the property was in the other spouse’s name.
Read Also
Support needed at all levels for high-value solar projects
Farmers, rural municipalities and governments should welcome any opportunity to get involved in large-scale solar power installations, say agrivoltaics proponents.
Applying those rules, Donovan and Kristen would share the cattle operation. In the case of Kara and Mark, a court would look at the value of the property Mark had when the relationship started and attempt to value Kara’s assistance to the operation and award her a share based on that contribution.
In the 1993 case of Peter vs. Beblow, the court ruled that taking care of the house and looking after children was indeed a contribution to the property.
The issue in this most recent case, Nova Scotia vs. Walsh, was whether common-law spouses should be treated in the same manner as their married counterparts. Under matrimonial property laws in all provinces, the presumption is that property will be divided equally between married spouses. Should that rule apply to common law couples?
Walsh and Bona lived together for 10 years, and two children were born to the relationship. They owned a house as joint tenants and some other property for a total net value after debts were subtracted of $66,000. When the relationship ended, Walsh sought support for herself and the children and also an equal division of the property. She argued that the law discriminated against common law spouses who were treated differently from their married counterparts.
Her lawyers cited the Charter of Rights and Freedoms that guarantees equality of treatment under the law and they argued that under Nova Scotia law, married spouses were treated differently from common-law spouses.
The majority of the court rejected her claim, holding that a decision not to marry should be respected and that people were obviously making a choice to avoid some of the obligations that arise from marriage including the presumption that property will be shared.
This decision does not change the law or mean that common-law spouses have no rights in property held by the other. Rather, it means that when property is divided, each spouse will have to show their contribution to the relationship and a judge will have to divide the property in accordance with the amount of contribution he assesses to each party.
Readers should note that this decision will have minimum effect in Saskatchewan where laws were changed in 2002 to provide that if a couple have been cohabiting for two years, then it is presumed their property will be divided equally.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
