Common-law couples: exclusive possession of home

A colleague once said to me that she does not wish to get married because marriage is akin to entering into a contract with respect to rights and obligations regarding property. From a legal perspective, this is mostly correct. Due to the normalcy of living in a conjugal relationship nowadays, most people do not understand that common-law couples do not have the same rights and obligations as married couples.

Common-law couples that reside together often refer to their residence as their “ family home” or “matrimonial home” when, in fact, a matrimonial home is only recognized for married couples.  The Family Law Act defines “matrimonial home” as:

“Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

Further, the Family Law Act provides protections to married couples such that each party has equal right to possession of the matrimonial home, even if one of them does not have ownership in the house. The legislation is so strict that the Act also does not allow parties to contract out of the equal right to possession of the matrimonial home. This means that any such term in a marriage contract (prenup) shall not be enforceable.

On the other hand, while for married couples there is strong and settled protection of rights with respect the matrimonial home, Ontario law does not recognize any matrimonial home rights for common-law couples. For instance, consider the following example:

  1. Spouse A moves into the house owned by spouse B;
  2. The spouses reside together in a common-law relationship for 20 years;
  3. Upon breakdown of the relationship, Spouse A has no automatic right to possession of this house. Spouse B can ask spouse A to leave the house.

While these automatic rights do not exist for common-law parties, as the legislature does not address the same, spouse A might nonetheless have remedies with respect to an equitable interest in spouse B’s house as well as an ability to rely on limited caselaw allowing Spouse A exclusive possession of the house. However, these types of cases are very fact specific. For example, in Morrison v Barbosa, we see a move toward expanding the property rights of common-law couples. In this case, the facts were as follows:

  1. Spouses resided for six years together in the home of spouse B;
  2. Spouse B moved out to attend school;
  3. Spouse A remained in the home and the parties eventually ended their relationship;
  4. Spouse A made contributions to the home while residing there;
  5. Spouse A successfully obtained an interim order of exclusive possession of the property.

What does this mean for common-law couples? It means that parties should be proactive from the onset of the relationship to openly discuss their concerns, address them with their spouse, and address property issues in a Cohabitation Agreement. If you are Spouse A in the above example, you do not want to be forced to prove any claim you may have regarding Spouse B’s property; similarly, if you are Spouse B in the above example, you do not want to rely on the fact that there are no automatic rights and risk that Spouse A may have a claim against your property.

The above is drafted by Soica Law Professional Corporation and is not intended as legal advice. It should be understood that each case is different and a lawyer should be consulted to discuss each set of unique facts.