Although you may expect that, as a common law spouse, you have the same rights and obligations as married spouses, this is not the case. It is important to know and understand the distinctions between married and cohabitating spouses in order to protect yourself in the event that your relationship breaks down.
Under the Family Law Act (FLA), there is equal division of financial gains of the marriage. The net family property is found for both spouses, and then the wealthier of the two pays half of the difference to the other spouse. There is limited judicial oversight and spouses are free to dispose of assets other than the matrimonial home. However, the FLA property regime only applies to “spouses” as defined in s.1 of the FLA. Therefore, only married spouses and not cohabitating spouses may benefit from an equalization of family property.
Although this distinction has been called into question, in Nova Scotia v Walsh, the Supreme Court of Canada held that the discrepancy between married and cohabitating spouses is not discriminatory, as married spouses have made a conscious choice to enter into a marriage, rather than live common law.
There are, nevertheless, remedies available at common law for cohabitating spouses: namely, the constructive trust resulting from an unjust enrichment (Becker v Petkus, Kerr v Berenow). A constructive trust allows a cohabitating spouse who is not on title to gain a right to property in a particular asset, such as the matrimonial home. Thus, a cohabitating spouse who has stayed home with the children and completed the majority of domestic services may be awarded a monetary award or a constructive trust over the matrimonial home where their contribution is connected to the home itself. A spouse seeking a constructive trust order must establish four requirements:
- That by their contribution of money or labour, they enriched the legal titleholder of the property in question;
- Enrichment of the other spouse resulted in a corresponding deprivation to the contributor;
- There is no juristic reason for the enrichment (anything which might explain the differential, eg. a contract or gift);
- There is a connection between the contribution made and the acquisition or improvement of the property in question.
Without the fourth requirement, courts will only award monetary damages and not the property itself. Finally, courts award property in proportion to the contribution made.
Possession of the Matrimonial Home
The matrimonial home is treated distinctly from all other property. Irrespective of which spouse has title to the matrimonial home, both spouses have equal right to possession (s. 19 of the FLA). Even a marriage contract made prior to the marriage/period of cohabitation will not be binding (s. 52(2) FLA). Regardless of who has proprietary rights to the matrimonial home, the court can make an order for exclusive possession (s. 24(1)(b) FLA). The legislation protects possessory rights in the matrimonial home because there is sometimes a need to evict one spouse in order to prevent domestic violence or to mediate against the impact on children.
Fear not; unmarried cohabitating spouses have a few different options.
First, cohabitating spouses who have lived together for a period of not less than 3 years or who are in a relationship of some permanence if they are the natural or adoptive parents of a child may apply for the matrimonial home as part of spousal support under s. 29 of the FLA. According to s. 34(1)(d) of the FLA, the court may make an interim or final order respecting the matrimonial home. Second, although it doesn’t lead to exclusive possession, cohabitating spouses may get a constructive trust over the matrimonial home, which gives each spouse a joint equitable interest in the home and therefore joint possessory rights in the home as well (equal right to live in the home).
Third, on application, the court may make an interim or final restraining order against a person who is a spouse/former spouse of the applicant or a person who is cohabitating or has cohabitated with the applicant for ANY period of time (s. 46(2) FLA). An interim or final restraining order may be made if the applicant has reasonable grounds to fear his or her own safety or the safety of any child in his or her custody (s. 46(1) FLA).
Finally, in certain scenarios, if a cohabitant is charged criminally, bail conditions may exclude the offender from the matrimonial home.
In effect, the common law has swooped in to remedy many of the injustices that result from separate regimes for married and unmarried cohabitating spouses.