Can You Claim Half the House After a Common-Law Split in New Brunswick?

Many people assume that after years together, the home is split down the middle. In New Brunswick, married spouses can apply for equal division of marital property, although the Court may order unequal shares or exclude certain assets, and a domestic contract can prevail over the Act. That is not the rule for unmarried partners.

If your common-law relationship has ended and the home is in one name, or you both paid into it, this article explains why the law treats you differently and what options you still have.

This article covers the law of New Brunswick.

Why the half-and-half rule does not apply

Under the Marital Property Act, each spouse is entitled on application to have marital property divided in equal shares after divorce, nullity or separation with no reasonable prospect of resuming cohabitation. That equal division applies to spouses, who are married persons.

The Family Law Act defines a common-law partner as a person who cohabits in a conjugal relationship with another person without being married to them. That puts you outside the marital property regime. A common-law partner does not get automatic equal division of the home or other property.

The Court of Appeal of New Brunswick has said there is no automatic equal division of family assets in a common-law relationship.

Married and unmarried: how it compares

For married spouses, an application for division must generally be made within sixty days after a spouse ceases to be a spouse because of a divorce or a declaration of nullity, and the Court can extend that time where a person lacked knowledge or was prevented by circumstances beyond their control. Whether and how time limits affect your claim as an unmarried partner depends on the facts, so ask a lawyer promptly.

What options you do have

The Supreme Court of Canada treats unjust enrichment as the main route for dividing property after an unmarried relationship ends. In plain terms, it asks whether one person was enriched at the other's expense, without a good reason. Living together alone does not give you a share.

Common-law partners must rely on unjust enrichment or constructive trust, or negotiate a settlement. A settlement is often faster and more predictable than a court claim, but the outcome depends on both people agreeing.

Things that tend to matter in a conversation about your claim include:

• Whose name is on the title and on the mortgage
• Who paid the down payment, mortgage, taxes and repairs
• Work you did on the home or to support the household
• How long you lived there and what you each expected
• Whether any gifts or inheritance went into the home

These are general points for discussion. How a court would weigh them is something a lawyer can assess once they see your documents.

Support and children are separate questions

The house is only one piece. A spouse support obligation under the Family Law Act extends to common-law partners who have cohabited continuously for at least three years with one substantially dependent on the other, or who have cohabited in a relationship of some permanence and are the parents of a child.

If you have children, the Court may make a parenting order on application by a parent or a person standing in a parent's place. In making it, the Court takes into consideration only the best interests of the child. Property and parenting are decided on different tests.

What to do next

• Gather the title, mortgage documents and any purchase agreement.
• Collect records of who paid what, such as bank statements and receipts for repairs.
• Write a short timeline of when you moved in, when you separated and who has stayed in the home.
• Check whether you signed any written agreement about the home.
• Speak with a lawyer early about your options and any time limits that may apply.

If you are in a safe place to do so, try to avoid selling, transferring or borrowing against the home until you have advice. If safety is a concern, get to safety first and seek help.

Frequently asked questions