Common law relationships - Feb. 15, 2009

Unmarried/Common Law: If you and your partner have co-habitated for a period of time, with or without kids, there may be obligations arising from that relationship. There are always child support obligations, where there are children involved. It does not matter that you are not married.

In all other aspects, however, when you have chosen not to marry, the presumption is that each party retains what is his or hers and there is no 'marital' interest in non-jointly owned property. The law considers it important that you chose not to marry and therefore you chose not be subject to the same legal rights and obligations as married persons under the various statutes that apply.

Only jointly held assets are automatically, at law, considered to be equally owned. Nevertheless, a home in the name of one party, if acquired at the time of the relationship and paid for equally by both parties may be subject to equal division, with appropriate proof of contribution. The person whose name is not on the property is the one who bears the burden of proving that he or she did make financial or other significant non-monetary contributions to the upkeep of the property.

There is also an argument for spousal support in a common law relationship, but that is based on what is called a resulting or constructive trust and is entirely judge-made law. The basic argument is that one party provided services to the other that gave the other party an economic benefit and that it would be inequitable or unjust for the other party not to be compensated for their contributions. The party seeking support bears the burden of proof.

As with marriage, cohabiting couples can protect their ownership and property by having a properly drafted Cohabitation Agreement in place.

At the risk of repeating myself too many times, please remember that the information given herein is not legal advice, but general information provided to help you prepare for your first meeting with your lawyer. Everyone's situation is different which means that the solution to your problem should be tailored especially for you. There is no cookie-cutter, one-size-fits-all solution for legal issues. I encourage you to contact my office if you would like to make an appointment to discuss your particular situation.