July 2011-Legally speaking, someone leaving a common law relationship has a very steep uphill battle to get any part of their ex-spouse's property. Normally, common law partners breaking up take out of the relationship the things that they brought into it, or the things that are in their name. This could be very unfair where, for example, both people put money and labour into buying and fixing up land but put it into only one name.
The Supreme Court recently took a fresh look at the law about common law couples and their property. The Court is recognizing now that common law relationships are often partnerships, much like legally married couples who are already treated this way at law.
With this new way of looking at common law couples comes a new way of dividing their property when they break up. The Court said that it's only fair that each partner should get a share of whatever they built together. This share should match their share of the work done. So in the property example above, a court would now look at how much each partner put into the land, not just the fact that it's only in one partner's name.
This new way of dividing property does not automatically apply. The original 'take out what you bring in' method is still the standard. In order to trigger the new system, the old system has to be unfair in the circumstances and the relationship has to be a "joint family venture." Basically, this means that both spouses meant to form a partnership and lived as a family, not as two individuals. In deciding whether there was a joint family venture, Courts will look at things like:
ï§ Whether the partners had common family goals and worked together on them
ï§ Whether the partners shared their money
ï§ Whether the partners each made sacrifices for the good of the family
ï§ What kind of relationship the partners meant to form
ï§ Whether one spouse stayed home to raise children and/or made career sacrifices to advance the other's career
If all of these factors show a family relationship, the Court will look at what assets came out of the partnership and how much each partner contributed to them. The partner applying under this system has to prove that they chipped in to the asset they want a share of.
This doesn't mean that common law couples will be treated the same way as married couples. The battle is still an uphill one but the hill may not be as steep. The Supreme Court has opened the door so that both partners can more easily get a share of what they helped to build.