Unjust Enrichment Claims for Common-Law Couples in New Brunswick

You may have paid toward a house that is in your partner's name, renovated it, covered the bills for years or looked after the home and children while your partner built up assets. When the relationship ends, you may be told that you have no claim because you were never married.

That is not the whole picture. New Brunswick law treats unmarried couples differently from married ones, but there is a legal route called unjust enrichment. This article explains in plain terms how it works and what to gather, though the outcome in any case depends on its facts.

This article covers the law of New Brunswick.

What unjust enrichment means

In plain words, unjust enrichment is about fairness when one person ends up better off at another person's expense, and there is no good legal reason why they should keep the whole benefit. For example, one partner may have put money or work into property that the other partner holds in their own name.

The Supreme Court of Canada has treated unjust enrichment as the main route for dividing property after an unmarried relationship ends, and has made clear that cohabitation alone does not create an entitlement to a share. In other words, you have to show something more than the fact that you lived together.

Why common-law partners need it

Married spouses in New Brunswick can apply under the Marital Property Act to have marital property divided in equal shares, for example after divorce or separation with no reasonable prospect of resuming cohabitation. That Act applies to spouses, meaning married persons. A common-law partner does not get automatic equal division of the home or other property.

The Court of Appeal of New Brunswick said in Wills v. Kennedy, 2015 NBCA 31, that there is no automatic equal division of family assets in a common-law relationship. Common-law partners must rely on unjust enrichment or constructive trust, or negotiate a settlement.

How courts approach a claim

Because common-law partners do not get automatic equal division, and living together does not by itself create an entitlement to a share, a claim depends on the facts of your own situation. How those facts would be weighed in your case is worth confirming with a lawyer.

Because there is no automatic share, it helps to be able to point to specific things you did or paid for. Examples of what you might be able to document include:

• Money toward the purchase price, a down payment, mortgage payments, property taxes or insurance.
• Money or labour for renovations, repairs or improvements.
• Household expenses that let your partner pay down a mortgage or build up an asset.
• Unpaid work in the home or in a partner's business that freed up time and money for them.

Whether a result is a share of the property or a money award depends on the circumstances and is worth discussing with a lawyer.

Evidence that supports a claim

Since a claim rests on what you can show, records make a real difference. Informal arrangements are common between couples, so it helps to find anything that shows what each of you understood at the time.

• Bank statements, e-transfer histories and cheques showing payments toward the home or household.
• Receipts, invoices and photos for renovations and materials you paid for.
• The deed, mortgage documents and any agreements about who owned what.
• Messages or emails in which you and your partner discussed money, ownership or plans.
• Names of friends, family or tradespeople who saw your contributions.
• A timeline of when you moved in, when major purchases or work happened and when you separated.

Also keep in mind that any written agreement between you may matter. If you signed a cohabitation or separation agreement, its terms and how it was signed can affect your position, so have a lawyer review it.

What to do next

Start by collecting your records while they are easy to find, and avoid selling, refinancing or transferring property without advice. Then speak with a family lawyer about whether a claim makes sense and what your options are, including negotiating a settlement, which is one of the routes available to common-law partners.

Time limits can apply to legal claims, and they differ depending on the type of claim, so do not wait. A lawyer can confirm the deadline that applies to you. If children are involved, parenting and child support are separate questions with their own rules, so raise them at the same time.

Frequently asked questions