Common law Property, Pensions & Debts
If someone is given exclusive occupation, this means they have the sole right to live in the designated home, residence or rental unit, like an apartment. The other person, who is not granted exclusive possession, must leave.
Exclusive occupation is usually a temporary right given to a person to live in the property until something else happens in the future - for example, until the house is sold, or some specified future event happens. Granting exclusive occupation does not affect either person’s interest in the home, residence, or rental unit. In this case, 'interest' means:
- the right to make a legal claim in relation to the home, or
- the right to own the home or share in the proceeds of the home, if it is sold, or on a final division of assets.
An application for exclusive occupation can be made to the court if you are asking to be the only party who is allowed to live in your house or residence. Former common law couples can also agree to this arrangement in the terms of a separation agreement.
There are two laws in Nova Scotia that deal with these kinds of issues – the Parenting and Support Act and the Matrimonial Property Act. You can only use the Matrimonial Property Act if you are married to the other party, or if you have registered with the government as ‘Registered Domestic Partners.' The Matrimonial Property Act deals with ‘exclusive possession’ of a ‘matrimonial home.’ It does not deal with rentals, like apartments.
You can only use the Parenting and Support Act if you are making the application at the Supreme Court (Family Division) in Halifax, Sydney, or Port Hawkesbury.
You can make an application under the Parenting and Support Act for exclusive occupation of an owned home, a home for which you are paying a mortgage, or a rental unit (like an apartment).
There are several things to consider with this type of request, including whether:
- there are children
- there are other adequate accommodations for each of the former partners
- it is in the children’s best interests to stay in the home, residence or rental unit.
Domestic violence issues, and the existence of other court orders or court requirements to stay away from a party, may play a role in these cases.
You should speak with a lawyer for advice if you are making an application for exclusive occupation of your home or rental unit.
Common law partners are called ‘common law’ because the law that applies to their situation has developed over time by courts making decisions. These decisions create legal precedents, or directions, which are used to decide cases that come after them that deal with the same legal issues and facts. They are called ‘equitable remedies.’
The common law legal principles for dividing property changed in 2011, and include the principle of ‘unjust enrichment’ and, now, the concept of ‘joint family ventures.’
Understanding the law and trying to decide what is best to do in your situation may not be easy. It is recommended that you get advice from a lawyer if you are going to apply to the court to divide common law property.
Unjust enrichment is a legal principle. It describes a situation where there is a benefit gained by one common law partner at the expense of the other common law partner and where there is no legal reason for this benefit to have happened. Unlike married spouses, common law partners must prove their entitlement to share the assets owned by the other partner. Unjust enrichment is a way of proving this entitlement if the facts of the case can show that it happened.
The law about unjust enrichment is complicated and changed in 2011. The law now says that the person asking for compensation based on unjust enrichment must show that:
- there was a ‘joint family venture’
- that what they contributed increased the value of the family's assets and property, and
- that the other person has kept property that gives them an unfair benefit.
If unjust enrichment can be proven, then the partner who received the benefit will need to pay or give compensation of some kind to make up for the amount of the benefit the other partner lost.
Some of the things to be considered are factors like:
- sharing bank accounts and expenses
- putting money into the purchase of assets, like your home or other property
- contributing to the value of assets through upkeep, homemaking or child-rearing.
You will need to get legal advice from a family law lawyer when dealing with common law property division.
Sometimes common law partners may apply to receive a portion of pension plan benefits earned by the other partner when their relationship ends. Whether you are able to ask for a portion of these benefits will depend on a number of different things.
You must be considered a ‘spouse’ to receive a division of the pension. ‘Spouse’ will be defined in the pension law that applies to the pension held by your former partner. There are different laws that apply to different kinds of pensions. Each pension law may define ‘spouse’ differently.
Depending on what the pension plan requires, you will need to have:
- a written agreement from the other party agreeing to the division, or
- a court order allowing the division.
You may make a request for this division as part of a court application if the other person does not agree to divide their pension.
Once you have the final agreement or court order, a formal request will have to be made to the pension plan administrator to make the division happen. The pension plan administrator may give you a lump sum equal to the share of the value of the benefits being divided. The pension plan administrator will transfer the lump sum either to an RRSP or to a life annuity through an insurance company. How it will be dealt with will depend on the situation, including the type of pension plan.
Sometimes the parties can agree to exchange other assets of value instead of dividing the pension. You will need information about how much the pension benefit owed is worth if you are going to do this. The pension plan administrator may be able to give this information. You may also need the help of a professional called an actuary.
Pension division is very complicated. You should not agree to a pension division without getting legal advice first.
Canada Pension Plan (CPP) credits are dealt with differently than private work pensions.
When you work in Canada, the government keeps track of how much you pay into the Canada Pension Plan (CPP). When you retire or become disabled, you can apply to the government to start receiving your Canada Pension. The amount you get is based on how many credits you collected while you were working.
If you lived with your common law partner for more than one year before you separated, you can apply to split the Canada Pension Plan credits that you and your partner collected while you were together.
Basically, CPP will look at how many credits you earned during that time and how many your partner earned during that time. They will then add these amounts together and divide them evenly, so you both have the same credit amount for the time you were together.
If your common law relationship ended on or after January 1, 1987, you can have your credits split if:
- you lived together continuously for at least one year
- if at the time you apply, you have been living apart for at least 12 consecutive months (unless your former common law partner dies in that time), and
- you apply within four years of the date you began living apart.
Same-sex former common law partners may be eligible for credit splitting if the separation occurred after July 31, 2000.
You may need to help pay for your partner's debts after separation. Whether you will or not depends on several factors. One important factor is whether you are also named on the debt. If you co-signed a loan with your partner or have joint loans or credit cards, you are likely still responsible for your share of that debt. Debts may also be looked at as part of unjust enrichment claims.
This is a tricky issue. You should get legal advice to make sure you know what your rights and obligations are in relation to the payment of debts when you separate.
This depends on a number of things. If your partner had a will naming you as a beneficiary, then you would normally be allowed to keep those items listed in the will. If there is no will, then much will depend on whether the two of you jointly owned your property or home together. If you did not jointly own property together then you do not automatically inherit your deceased partner’s property. You may, however, be able to make a claim for the property in court. If your partner had children, they may also be able to make a claim to the property.
If you were Registered Domestic Partners then there are different laws that may apply to your situation, like the Intestate Succession Act, that would not apply to you as a common law partner.
This is a complicated issue, and you should speak to a lawyer for advice about what to do.
You may be able to apply to the Nova Scotia Supreme Court or Supreme Court (Family Division) using a law called the Partition Act if you and your ex-common law partner own a home together and your partner will not agree to sell the house when you separate. This law may allow a judge to order that:
- property owned by more than one person be sold and the money from the sale be divided between the owners, or
- money be paid by one person to the other, instead of having the property sold.
In some unusual situations, a person may be able to apply for exclusive occupation of a home under the terms of the Partition Act.
Applications made under this law are complicated. Please see a lawyer if you are using the Partition Act.
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