Common-Law Property Division: No Automatic 50/50 Split
- Michelle Rakowski
- Sep 11
- 3 min read
In most provinces in Canada, common-law property division works very differently than property division for married couples. Married spouses usually split the value of assets equally under family law. Common-law spouses, however, don’t have that automatic 50/50 division. Instead, they must rely on property law and legal concepts like resulting trusts, constructive trusts, and unjust enrichment.
Let’s explore this with a real-world example.
Meet Marissa and Daniel
Marissa and Daniel have lived together in a common-law relationship since 2011. They have two young kids. Marissa bought their home originally, with her mother co-signing the mortgage. Years later, her mom had to come off the mortgage, so Marissa added Daniel to the title to qualify. Now that the relationship has ended, Daniel assumes he owns half the house because his name is on title. But is that actually true?
Who Owns the House? Title Isn’t the Whole Story
Even though Daniel’s name is on the title, that doesn’t automatically mean he owns 50% of the home. Courts ask deeper questions, such as:
Why was Daniel added to the title? If it was only to help Marissa qualify for the mortgage, that’s different than if she intended to gift him half.
Did Daniel contribute financially? If he paid into the mortgage, renovations, or household bills, he might have a claim if Marissa covered everything, which matters too.
Was there unjust enrichment? If Daniel benefitted from the home’s increase in value without contributing, courts may find it unfair for him to walk away with half.
Legal Tools: Trusts and Fairness
Resulting Trust. This applies if adding someone to the title wasn’t meant as a gift. Marissa could argue: “I only put Daniel on the title so I could keep the house. I never meant to give him half.”
Constructive Trust. This may apply if one partner was enriched through the other’s contributions. If Daniel can prove he contributed through finances, home maintenance, or parenting, he may have a partial claim.
Unjust Enrichment: Courts look for three elements:
One person gained
The other lost
There was no legal reason (like a gift or contract)
If those conditions are met, compensation or sharing of value may be ordered.
What Common-Law Property Division Looks Like in Practice
In many cases, people negotiate a buyout based on contributions. For example:
If Marissa paid 100% of the down payment and 80% of the mortgage, she may buy out Daniel’s share at 20–30% of the equity, not 50%.
If Daniel made significant contributions, his share could be higher.
Every case is unique. Courts and mediators focus on fairness, not assumptions.
Why Mediation Helps in Common-Law Property Division
These cases are often emotionally charged. Mediation can be a better path than court because it:
Clarifies the facts
Explains legal options in plain language
Encourages fair solutions without huge legal bills
It’s not about who’s “right” or “wrong.” It’s about what’s reasonable for both parties, especially when children are involved.
Final Thoughts
If you’re in a common-law relationship and either added your partner to the title of your home or are listed on theirs, don’t assume equal ownership.
A few key takeaways about common-law property division:
Being on title doesn’t guarantee a 50/50 share.
Contributions—financial and otherwise—make a big difference.
The law looks at fairness, not just paperwork.
Mediation can help resolve property disputes without a costly court battle.
Need guidance with a common-law property dispute? A mediator can help you understand your options and find a path forward that respects both your rights and your family’s needs.
Next Steps
👉 Contact Alliston Resolutions today to book a consultation and learn how mediation supports fairness in common-law property division.
External Links:
Comments