When common-law Partners Separate: Who Gets the House?

When a common-law relationship ends, the partners (also called common-law spouses) must decide which of them will move out and which of them will stay in the home. Their decision will depend on several factors.

RENTER(s) or OWNER(s)?

One of the first factors to consider is whether one or both of the common-law partners own the home or are renting the home.

Renter(s): Who Gets the Rental if Common-law Partners Separate?

If the partners are renting the home, they will need to review the rental agreement or lease.

One Partner on Lease:

If only one partner’s name is on the lease, only that partner has the right to stay in the home. The person who is not on the lease will need to move out and if they do not do so, the partner who is on the lease (the legal tenant) has the right to change the locks.

Both Partners on Lease:

If both partners are on the lease, they will need to agree on who will stay and who will go. If they absolutely cannot agree, a court may eventually need to decide this, but it would be very expensive to obtain a court order resolving the matter, and it would usually take months to obtain such an order.

If the partners are both are on the lease, another factor to consider is who can afford to keep the lease. If one partner cannot afford the lease, that partner may be better off leaving the home.

Home Owners: Who Gets the House if Common-law Partners Separate?

If the home is owned (rather than rented), it is important to review the deed to confirm title (ownership) to the property.

One Partner Owns the Home:

If only one of the common-law partners is on title (owns the home), only that partner (the home owner) has the right to stay in the home. He or she can demand that the other person vacate the property immediately, and can ask the police to enforce this.

Married vs Common-law Home Owners

The rights of spouses is quite different for married couples. If a married couple’s relationship breaks down and title to the home is only in one spouse’s name, the married home owner cannot force their spouse to vacate the property. In addition to having the equal right to stay in the home, married spouses also have an equal right to the division of the family (married spouses’) wealth.

In contrast, common-law partners do not have the right to stay in the property if they do not own it, and do not have the right to divide the family (their common-law partner’s) wealth.

Both Partners Own the Home:

If both common-law partners own the home (both their names are on title) they both have the right to stay in the home until they decide what to do with it in the long-term.  The only exception is if one partner obtains a court order forcing the other to vacate the property temporarily, meaning until the partners or the court decide what to do with the home in the long-term.

Ultimately, the common-law partners who are both home owners will need to decide whether to sell the home on the open market or whether one partner may buy out the other partner’s ownership interest.

Summary:

A person whose common-law relationship has broken down cannot stay in the home unless they are a legal tenant (on the lease) or a legal owner (on title).

This right can be changed by the partners if they agree to do so, or can be changed by a court order either temporarily or permanently.

Other Considerations about the Home when Common-law Spouses Separate:

Unjust Enrichment:

Sometimes, where only one partner owns the home (is on title), the other person (whose name is not on title as an owner) may have contributed money to the down payment or mortgage payments, or may have contributed labour which benefited the owner and the owner’s property, such as doing repairs, maintenance, and upkeep. In these cases, it may be unjust if the owner keeps all the benefit of the property by living in the home and retaining the value of the property.

The non-owning partner may consider making a claim (bringing an application to court) requesting:

• to stay in the property
• to be compensated financially for their contributions to the purchase price (down payment, mortgage) and their labour (repairs, maintenance or upkeep), or
• to be awarded an ownership interest in the property.

This is called a claim for “unjust enrichment.” It requires that the non-owning partner:

• prove they made contributions of money or labour or both;
  • Proof requires evidence such as bank records, money transfers, invoices, receipts, pictures of the person doing renovations, testimony from family and friends who witnessed the contributions and the like.
• prove that these contributions benefited (or “enriched”) the owner;
  • For example, the person’s contribution of a down payment and mortgage payments enriches the owner because it increases the owner’s equity in the property. The person’s labour may have increased the property’s value, which enriches the owner financially.
• prove that there was no other / legal reason they provided these funds or labour.
  • For example, the person wasn’t paid by the owner to perform these services as the gardener or the maid.

These types of claims can be successful with sufficient evidence. However, it usually costs significant time and expense to bring these claims through court.

** Note: Partners and Spouses on a First Nations’ Reserve

Where the home is located on a First Nations’ reserve, the law is unique. It is best to speak with a lawyer experienced in this area.