Are you sure you own your home?

Thursday, September 13, 2018 Written by Emmanuelle in Real Estate industry

My Common Law Partner and I have a house together but my name is not on title. I must have an interest because we have been spouses for twenty years, right?

Unfortunately not.

Common law partners do not acquire the same property rights as couples who are formally married. It does not matter how many years you have been together for these purposes.

  • Couples who live in a common law relationship need to document their arrangements to make sure that they agree on it.
  • If the intention is that the surviving spouse should own the house it can be documented either directly or on title or in a will, but with a will there is a likelihood that probate fees will apply.
  • Many couples who are thinking of separating are unclear about how family law determines division of the family property – including cottages and rental property.

Once someone decides to move out of the matrimonial home and live in a different residence, the biggest question they might have is whether the separation impacts property division.

The answer depends on whether the separation is temporary or permanent.

The permanent separation triggers certain property rights.
For married couples who end up permanently separating, the Family Law Act (FLA) governs their financial affairs, the home and all of their other assets accumulated during the marriage will be divided equally between the spouses.

The case is different for common-law partners.

In Ontario, if there is a permanent separation, there is no automatic equal division of asset. Usually each partner keeps the assets in their names and they share the joint assets in the proportion reflected in the title. If the house was owned as joint tenants, then they are each entitled to half. But if one partner only was on title, the other spouse does not have an automatic right to a portion of that house.

The non-titled spouse would have to prove that they made significant contributions towards the purchase price, the mortgage or made significant improvements that resulted in an increase in the value of the house.

Real estate agents dealing with couples who are about to separate, or have recently separated, should recommend they speak with a family law lawyer to fully understand their legal rights and ensure that their property interests are protected.

As you know , I am Bilingual French /English and this newsletter has been published on "L'Express de Toronto" on September 11th, 2018.
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