How Property Is Divided When Common Law Spouses Separate

In a common law relationship, you don’t automatically have a right to share equally in the assets that were accumulated during the relationship. That is one way in which a common law relationship is very different from a marriage.

If common law spouses separate, ownership of the property determines who gets what. Your property is yours and your partner’s property is your partner’s. The only way that you can get some of your partner’s property is if you somehow contributed to the acquisition of that property, for example by way of payment of money or by the provision of some services.

For example, a man who owns a cottage outright enters into a common law relationship. During that relationship, they do some renovations to the cottage. The common law wife does some painting, cleaning up and decorating of one of the rooms at the cottage. When they separate, the judge declares that she should be compensated as much as $10,000 for her contributions to that asset. She does not have a right to own any of that asset, but she is compensated because of her contributions.

If you are in a relationship of some permanence over many years and you have children, you could get up to a 50 percent of the assets and be declared to be a part owner of assets. There is a famous case involving a common law couple who were farmers. The man had all the property in his name but the woman was very involved in the farming operation. She helped with driving the vehicles, bringing lunch to the men working in the field, doing the bookkeeping, looking after the children, maintaining the house and undertaking all those traditional roles of a farmer’s wife. The court recognized that in that situation, although all of the assets were in the husband’s name, he would have an unjust enrichment as a result of the work and contribution that his common law partner had made to the acquisition of all these assets. So the court decided to treat them as if they were a married couple, and considered that she owned 50 percent of all of the assets that were acquired during the relationship.

The key is to determine what contribution you made to the assets that have been acquired. Every case is different. That’s what makes a common law separation very complicated. You have to look at all of the circumstances to see what evidence you have to prove the contribution, whether it be money or services provided.


If you, or someone you care about, is dealing with family law issues in the Barrie, Ontario Region, contact Galbraith Family Law for a consultation.

This article is taken from an interview with Brian Galbraith, Family Lawyer with Galbraith Family Law, a Barrie Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.