Common Law Spouses and the Matrimonial Home

Since common law spouses are not included in the s. 1(1) definition of spouse they are excluded from any part II rights and obligations dealing with the matrimonial home. Therefore, a common law spouse may maintain possession of or be granted possession of the home that was shared during their relationship pursuant to:

• S. 34(1)(d) of the Family Law Act.
• This gives the court the power to make an order respecting any matter authorized to be ordered under clause 24(1) which deals with the matrimonial home. Exclusive possession is one of the orders available.
• This section deals with spousal support orders and based on the s. 29 definition of spouse, common law spouses are included here and so by means of this type of order they may be able to garner possession of the home.
• s. 46 of the Family Law Act.
• This section also contemplates common law spouses based on the s. 29 definition of spouse and gives the court the power to impose a restraining order on one spouse
• The restraining order will typically prohibit the spouse from molesting, annoying or harassing the other and as a result the court may request that he or she stay away from the home which, by default, grants exclusive possession to the spouse for whom the restraining order is imposed.