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Dividing Assets under Trust Law
I am in a common law relationship with my partner. I have been engaged to be married to him for 2 years. We have been together for over five years and living consistantly together for almost 2 years. We have a three year old daughter together and I have a twelve year old daughter from a prior relationship. I am working part-time. He is working full time. and makes quatdruple what I make. He has purchased a house that we have had built and are moving in to it soon. He pays all the bills. Everything is legally in his name. I do all the house hold chores and tend to the children. I am worried that if there was a breakdown in our relationship, I would be out in the street with my two children. Would I be entitled to anything? (by D of Coquitlam, BC) Once you have lived with your boyfriend for two years, you will be considered to be common-law spouses under the Family Relations Act. Once you become a common-law spouse, you will also be eligible to receive spousal support from him. This is not to say that you WILL receive the support, just that you will qualify for it under the Act. Whether you receive spousal support will depend on the circumstances of your relationship, particularly whether you are worse off financial as a result of your relationship. Because you and your fiance are not formally married, you cannot take advantage of the parts of the Family Relations Act that deal with the division of assets. Your only claim to the assets held in your boyfriends name is through trust law. This is a little complex to go into right now; you should read the parts of my website dealing with the division of assets under constructive trusts very carefully (look this up in the index). It is difficult to give you an estimate of your chances of a successful claim based on the information you've provided, but if it is the case that you sacrificed your career in order to be a homemaker and stay-at-home mother for his benefit and the benefit of your child, you may very well have a good claim under the law of constructive trusts. (Again, you really ought to read that part of my website very carefully to get a better grasp on this legal concept.) Click here to go to the top of the page. My partner and I have been together for 8 years and have three children. We are now in the separation process. Four years ago after living rent free in my parents' house, my mother gave my brother and myself $30,000 for a downpayment to buy a home. My mother retains 43.9% of the home and we have 28.3%. I have been the caregiver for most of the relationship, while she has worked of and on. She has been paying most of our share ofthe mortgage for the past 4 years. Has she the right to half of my share in the house? (by B of Richmond, BC) Let me preface my answer by telling you that I am assuming that you and your partner are not married. If you are married, of course, my answer will change substantially! As you are unmarried, your ex-partner has no claim to your share of the property through the Family Relations Act. She must claim under trust law. Under the common law of trusts, she has no presumptive entitlement to your interest in the property. Please review the part of my website which deals with trust law for a more detailed answer and an explanation of what she must prove to make her claim. Once you've done that, read the rest of this email. Your ex-partner is not likely to be able to claim to that part of your 28.3% interest which is composed of the $30,000 your mother gave you to buy the house; that was a personal gift to you and she is unlikely to have a share of that. She has an obvious claim (if she meets the qualifications required to claim in resulting trust or constructive trust) to the money she put into the house by paying the mortgage. On the other hand, depending on how the court looks at things, you have some defences to her claim. First, you might argue that the money she paid to the mortgage was no more and no less than what she would have paid in lieu of the free-rent she benefitted from while living with you for 8 years. Second, you might argue that you contributed to the home by performing the lion's share of the caregiving, and that, in part, her payment of the mortgage compensated you for your child-rearing efforts, for which she may have had to pay a nanny. I must caution you that this is a ball-park sort of answer to your question. I strongly encourage you to get proper legal advice for your problem, legal advice which I simply cannot provide via email. Click here to go to the top of the page. In BC I understand common law constitutes as 6 months living together. I've also read 2 years as a common law indicator. I'm not sure what the correct timeframe is. My question is: I am an American (female) on a temporary work visa and have been living with my Canadian boyfriend for 1.5 years in BC, Canada. When we separate (break up), is he entitled to any of my assets, in addition, or do I have an obligation to pay some sort of spousal support? We have always shared expenses, but we do not have any joint assets. (by T of Cyberspace, BC) Common-law status in BC is acheived after you and your partner have lived together in a "marriage-like" relationship for two years. You've asked some questions that don't really lend themselves to straight forward, simple answers. Your best bet is to review the "Unmarried Couples" section of my website thoroughly; it details the answers to all of your questions. Nevertheless, I'll try and give you a quick, thumbnail sketch of the answers... First, your boyfriend has no automatic entitlement to a division of your property or to spousal support. Those questions are always resolved on a case-by-case basis. He will not be entitled to claim for spousal support until you've lived together for two whole years. Even then, it is not automatic; there must be some basis for his entitlement. For example, if he abandoned a career to act as a homemaker while you went out and held full-time employ, he might have a claim. If you both worked during the marriage, he isn't likely to have much of a claim. The answer to your question on property lies in the area of trust law and there is no minimum number of years you must have lived together for his entitlement to arise. In a nutshell, he *may* be entitled to a share of your assets if he can show either a direct contribution to those assets in the expectation of having a share in them (a resulting trust) or if his labour or unrepaid financial contribution unfairly helped you acquire those assets (a constructive trust) or if you ever said to him that he would eventually benefit from something you own (an express trust). This is really quite a complex area of family law, and I again refer you to my website. Click here to go to the top of the page. Site Navigation Go back to the Q&A Index. Section Menu
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