Common-Law Spouses and Real-Estate
- Unlike married couples, common-law spouses are not required to split a property including a matrimonial home upon separation.
- For the purposes of real-estate rules, common-law partners are not spouses of each other within the definition of Family Law Act.
- Definition of the terms ‘spouse’ under The Family Law Act reads as under:-
- “spouse” means either of two persons who,
- (a) are married to each other, or
- (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)
- Clause 29 of the Act also provides a different definition of the term ‘spouse’ which reads as under:-
- “spouse” means either of two persons who,
- (a) are married to each other, or
- (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)
- These two definitions create a confusion. On plain reading of the above one would understand that common-law partners are spouses within the definition of Family Law Act. THIS IS NOT THE CORRECT INTERPRETATION.
- Clause 29 applies only to the “Support Obligations”. It is only when a support is being claimed that, the common-law partners become spouses under the Family Law Act.
- For all other intents and purposes, common-law partners are not spouses of each other.
- Hence any real property is not required to divided upon separation.
- Personal belongings (bought by one’s own funds) such as furniture, cars, jewellery, household items belong to the person who bought them.
- Equalization calculations do not apply to common law partners upon separation.
- Any contribution made for the purchase/renovation/development of real-estate property is divided proportionately upon separation as per the percentage contribution made by each partner. However, there is no automatic statutory right under the Family Law Act to redeem the said investment. To claim the same, one has to resort to the principles of Unjust Enrichment or Constructive Trust and seek remedy from a Civil Court.
- Common-Law Spouses can enter into a domestic contract such as cohabitation agreements which will govern the distribution of assets upon separation. ONE SHOULD ALWAYS ENTER INTO A COHABITATION AGREEMENT BEFORE GETTING INTO A COMMON-LAW RELATIONSHIP. This makes things less messier upon separation.
