The Joy of An Ex - Property Rights for Unmarried Spouses

Copyright (c) 2011 Jackie Ramler

This chapter is a brief guide to property law principles that affect spousal relationships in Canada. Wherever you live in Canada, you must consult with a lawyer qualified to practice in that jurisdiction to learn how the law affects your own particular situation.

In Canada, spouses should be aware of the following concepts:

1. the common law

2. domestic contract

3. matrimonial property legislation, known as statute law

4. the law of equity, known as trust law

The Common Law -

When you say, this is my car, here are my ownership papers, you are asserting your ownership based on having legal title to the vehicle. Under the common law, the basic principle is that ownership follows title. So whether you received property by gift, or bought it yourself, if your name is on title (for example, the Deed to a house, or the registration for a car, or the bill of sale for a sofa), you are assumed to be the owner of that property under the common law. Sometimes two or more people share ownership of property, because all of their names are registered on title. An example might be a family cottage with four children sharing ownership.

Domestic Contract -

A couple may wish to pre-agree on how a given asset is to be shared if the relationship breaks down. They would do this by signing a domestic contract. A valid domestic contract takes priority over the common law, matrimonial property legislation and the law of equity. Parties must be careful to comply with specific statutory and common law rules in their jurisdiction if they want the contract to be binding. It is necessary to consult with a family law lawyer in your jurisdiction for help in making a domestic contract that will be binding later on.

Matrimonial Property Legislation -

Each province and territory of Canada has its own separate legislation (or statute) that governs how property will be divided between married spouses if the marriage breaks down. For example, in Ontario, the Family Law Act provides for an equalization of net family properties on marriage breakdown. Unless the spouses have signed a domestic contract stating otherwise, then on marriage breakdown, the value of all property acquired by dint of the efforts of either spouse between the date of marriage and the date of separation will be shared. In Ontario, it is the value of property that will be shared, not the assets themselves. Ownership of the asset still follows the common law rule based on title.

There is no similar legislation governing the property rights of unmarried spouses on the breakdown of their relationships. The main reason for this is that the Court presumes that if unmarried spouses had wanted to share their property upon separation, they would have signed a domestic contract saying so, or they would have become married in order to fall within the matrimonial property regime of their jurisdiction. By doing neither, it is assumed that they have decided to remain separate as to property.

The unmarried spouse who wishes to obtain a share of property owned in the name of the other spouse can see if his or her case fits within the principles of equity.

The Law of Equity (Trust Law) -

The law of equity exists to remedy an unfair situation so that justice can be done. A Judge or arbitrator applying the law of equity can take into account the contributions (e.g. monetary, or through labour) that each person made to acquiring or improving a property. He or she will also consider whether one party was unjustly enriched by the money or efforts of the other spouse. In addition, what the two spouses intended would happen to the ownership of the property is also taken into account. When it is right to do so, the Judge may award a non-titled party part ownership of a property registered in the other spouse's name. Or a monetary award may be granted to compensate the non-titled party for his or her contribution. You must consult with a lawyer in your jurisdiction to see if the law of equity can be applied to your circumstances.


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