Common-law couples deserve equal property rights: Townsend

By Staff

Having the same property rights for both common-law and married spouses would better reflect modern society, Toronto family lawyer Leanne Townsend tells

Alberta’s government recently introduced Bill 28, legislation that would expand the province’s Matrimonial Property Act to govern, for the first time, the division of property between splitting common-law couples, as well as divorcing spouses. As a result, if it passes, the law will be renamed the Family Property Act.

And Townsend, a partner with Brauti Thorning LLP, says Ontario should follow suit.

"The whole concept of giving common-law partners the same rights as married couples is a good one,” she says. "Anything that moves us in that direction is a positive development, and more in keeping with the times as they are in 2019.”

Townsend says many clients who come to her for advice following the breakdown of a common-law relationship get a rude awakening when she fills them in on the state of the law.

"They might have lived in a common-law situation for a very long period, or stayed at home to raise children, under the mistaken belief — perhaps from watching movies or television shows — that they are entitled to the same rights as a married person,” Townsend says. "But that’s not the case here.”

As the popularity of the institution declines across the country, Townsend says many common-law partnerships are virtually indistinguishable from formal marriages.

"It’s unclear whether marriage will still serve the same purpose or even be around in the future, as people increasingly function effectively as husband and wife — living together long term and having children — without going through the formality of a marriage ceremony,” she says. "It makes sense to me that those people should have the same rights as those who are married, should the relationship break down.”

In fact, Townsend worries that leaving the law unchanged would perpetuate historical power imbalances in common-law relationships.

"Often, a situation you will see is that the woman wants to get married, but the man doesn’t, and knows that he will not be exposed financially in the same way as if he was married because the property rights are different,” Townsend explains. "It has been a way to oppress some people a little in the past.”

The proposed Alberta legislation creates a new category of spouses known as "adult interdependent partners,” defining them as people who live together in a relationship of interdependence for at least three years, or less if they have a child together.

It follows a 2018 report by the Alberta Law Reform Institute which noted that more than 300,000 people in the province are in common-law relationships.

Because of the lack of legislated guidance on property division, the report said that common-law couples who break up "need to rely on complex judge-made law to divide their property,” adding that it considered the law of unjust enrichment "overly complicated, costly to litigate, and unpredictable.”

"Legislated rules would better guide parties to make their own agreements and settle disputes. Couples who lived together before marriage and adult interdependent partners may also need to rely on judge-made law for property division and would also benefit from a clearer legislated framework for property division," the report concluded.

Bill 28 will also amend Alberta’s Family Law Act to provide parents with the ability to compel former common-law partners to continue supporting their disabled children into adulthood, formalizing changes demanded by a successful Charter challenge of the existing law.

Formerly married spouses were already allowed to pursue a similar course of action against an ex under the federal Divorce Act.

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