In a recent article, (In New Brunswick, When Do You Become "Common-Law"?), we discussed how long it takes to become common-law in New Brunswick. In that article, we mentioned that common-law couples do not have the same rights as married couples, and there is no presumption of equal division of property on separation.
However, you can make a claim against your common-law partner's assets – it's just harder to prove.
For unmarried couples, property division claims are typically advanced using the principle of "unjust enrichment". To make a claim using this principle, you need to show three things:
- Enrichment – Your common-law partner has been "enriched", meaning you gave something of value that they received and retained. This may have been a direct financial contribution, e.g. you gave them money to buy an asset. Alternatively, your contributions may have been indirect, e.g. you performed tasks that saved them money or contributed to the generation of wealth. The benefit does not need to be permanent, but it does need to be a tangible benefit.
- Deprivation – You have suffered a corresponding "deprivation", meaning you gave something up, whether it is money, your time and efforts, or something else of value.
- Absence of a Juristic Reason – There is no reason in law or justice for your partner's retention of the benefit given by you. Relevant considerations include your and your partner's intentions and expectations. For example, your partner may argue that you clearly intended your monetary contribution to be a gift, and you may argue that it was not a gift and you expected to share in the resulting wealth that was generated.
"Mutual benefit conferral" is an example of a juristic reason that may defeat an unjust enrichment claim. An example is where you took care of the household tasks, while your partner got to focus all of their efforts on making money and investing it. You contributed to the generation of wealth because your partner was able to focus on their money-making pursuits. But perhaps you also benefited from this arrangement because you got to live expense-free in a house that they owned.
The law of unjust enrichment recognizes and responds to the reality that there are unmarried couples that are engaged in true partnerships. However, proving unjust enrichment does not mean you will be treated as though you were married—you still won't be entitled to equal division of your partner's property. But you will be entitled to be compensated for your contributions. How that is measured will greatly depend on the facts and circumstances.
Joint Family Venture
One way to prove unjust enrichment is to show that you and your partner were engaged in a "joint family venture", meaning you both were working together and creating wealth for the benefit of your relationship, your well-being, and your family life. There must be a clear link between your contributions to the joint venture and the accumulation of wealth.
Proving that you were in a common-law relationship is not enough to prove you were in a "joint family venture". These are two different legal concepts with two different meanings. However, you probably won't be successful arguing there was a "joint family venture" if you cannot first prove you were in a common-law relationship.
If you can prove there was a "joint family venture", you are entitled to receive compensation for your contributions, but again, how that is calculated depends on the circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
