Partners are in a common law relationship when:
1. They have lived together for three years; or
2. They have a child, and are in a relationship of “some permanence”.
Contrary to popular belief, common law partners do not have property rights when the relationship breaks down. Each partner is only entitled to keep the property he or she brought into the relationship or acquired during it.
This also means that there is no “matrimonial home” for common law partners – if your name is not on title to the home in which you and your partner resided, you will have no automatic right to remain in the home after separation or share in its equity. In most cases this issue is cut and dry.
This is subject to important exceptions.
Unjust Enrichment
Unjust enrichment in family law is based on the basic principle that partners should not be allowed to benefit at the other’s expense.
In 2011, Canada’s Supreme Court said three elements must exist to ground a claim for unjust enrichment:
- An enrichment;
- A corresponding deprivation; and
- An absence of a juristic reason for the enrichment.
In simple terms, it means that one partner must have benefitted at the expense of the other partner, and there cannot be a legal reason to uphold the benefit at the other’s expense (a gift or contract, for example).
In simple terms, it means that one partner must have benefitted at the expense of the other partner, and there cannot be a legal reason to uphold the benefit at the other’s expense (a gift or contract, for example).
How Can I Avoid an Unjust Enrichment Claim?
The short answer is a cohabitation agreement. It is best to clarify from the outset in clear terms how any wealth accumulated during your common law relationship will be dealt with at separation, and specifically with respect to the issue of unjust enrichment.
Unjust enrichment claims are very complex, fact-driven, and time-consuming. If you find yourself on either side of the claim, it is imperative to seek legal advice immediately. Our lawyers at Nussbaum Law have experience in dealing with these issues, and will carefully guide you through your claim.
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