In that case, it might be a wise move to go to the lawyer's office first to sign a "pre-nup" before she (or he) moves in and the common law relationship clock starts ticking.
Common Law Assets
- Thread starter Rockslinger
- Start date
Don't know, perhaps Oagre does. Where I practice there is no Common Law Marriage, although the courts have more or less adopted "Palimony."
I'm of mixed mind about prenuptial agreements and marriages, while I agree that they probably weaken the foundations of the marriage adding a certain element of doubt, at the same time they are of immeasurable benefit "if things go South." For instance take the not uncommon situation of one party bringing a house (perhaps an ancestral house) into the marriage and then during the course of the marriage they renovate the kitchen and sun room - it is still premarital property or now been transmuted into marital property - certainly a prenuptial agreement (if properly drawn) can largely eliminate the uncertainty.
I first heard of "palimony" when Lee Marvin left his girlfriend. Later, I heard that Judy Nelson sued her lesbian lover (Martina Navratilova) of 8 years for $15million and they settled out of court.
Basically courts pushed by modern social norms have applied Equity to the concept of "why buy the cow when you can have the milk for free." (basically saying you have bought the cow regardless)
Supposedly the difference with Common Law Marriage is that you are not being “forced into being married.”
However, there has been a fair amount of commentary that the abolition of Common Law Marriage in those jurisdictions that have done so – with one of the prime movers having been women’s groups – ended up adversely affecting women, hence "palimony" and similar equitable doctrines being a way around that.
Child support is the right of the children not the mom. The idea being that the kids should still benifit from both parents. Spousal support with a common law relationship is not automatic.
Steph
Yes, generally that is the way it works although if there was a mortgage etc that only you paid, then it may not be quite as clear. She will certainly get a portion of the increased value if not 50 % (maybe 30%) - at least that has been my own experience.
Again an example where a pre-nuptial agreement would almost certainly have proved helpful, unless for example she had paid 50 percent of the mortgage payments for years.
Not quite.....
The second you get married and she moves into your house, it becomes, "the marital home" of which she is entitled to stay in even upon disolution of the marriage, and if you sell it, she gets half. Even if you've paid for it up front before you even met her and it was entirely in your name.
There is no way around this even with a prenup as it is the law and contracts must operate within the confines of the law.
I have heard about guys setting up corporations and putting the house into the name of the corporation and the guy is the sole shareholder in the corporation. She then signs a prenup stating it's "hands off" the corporation, its assets, its value, appreciation, etc. I can't say that this is true, or if it would even work.
Simple......
Equate it to a live in Nanny. Say you paid the live in Nanny 100 grand a year (which would the best paid fucking nanny in Toronto)
After 5 years you split up and in that time, your business was sold for 60 million dollars and she wants half because she looked after jr. 5 years at 100 k per year = 500k compounded semi annually at the CPI.
But it would never fly, so why even bother.
From my POV, being a stay at home mom is not something that is worth a lot of money.
A nanny wouldn't give birth to your children or make your house into a home. It's impossible to put a value on these or many other things a woman can contribute to a marriage.
A man can do these things, but if he works outside the home he often doesn't in the same way.
A man can do these things, but if he works outside the home he often doesn't in the same way.
Rub, the other way is if things are going south in the marriage (and you can tell), then the owner can go out and mortgage the hell out of it (up to 80% of the worth I believe), somehow hide that money from her (good luck) and when the marriage goes south, you owe her half of 20% of the worth of the house, less fees.
BTW, this getting fucked over by a partner applies to women just as much men. Plenty of women are now making way more than their men and are single homeowners and could find themselves getting fucked out half of what they busted their ass to pay for.
BTW, this getting fucked over by a partner applies to women just as much men. Plenty of women are now making way more than their men and are single homeowners and could find themselves getting fucked out half of what they busted their ass to pay for.
Big deal.
You can adopt kids.
And you don't need a wife to have a home. The question was value. Kids will get their child support as per the law. The woman will want to take you for as much as she can swindle you for.
I haven't had time to read the thread in detail, but common law spouses in ON are NOT entitled to equalization claims. NOT.
They are entitled to alimony, but not a claim to equalize the net family property gained during cohabitation.
The courts see that as being the major difference between common law and formal marriage relationships in ON.
Common law spouses are entitled to bring trust claims for their contribution in cash or services to their common law spouse's acquiring of property and capital assets. The law surrounding these is insanely complicated and certainly not a topic for a few lines on TERB.
ON law is probably far different from US law on these points.
They are entitled to alimony, but not a claim to equalize the net family property gained during cohabitation.
The courts see that as being the major difference between common law and formal marriage relationships in ON.
Common law spouses are entitled to bring trust claims for their contribution in cash or services to their common law spouse's acquiring of property and capital assets. The law surrounding these is insanely complicated and certainly not a topic for a few lines on TERB.
ON law is probably far different from US law on these points.
Thanks. :-0.
I have Rockslinger on ignore and so I missed the entire point of the thread. I will check out the new case pronto.
I am assuming that the house was already in one partners name prior to the marriage and that person had a Line of Credit on the house that would enable them to borrow at will against it at will. I know in my case, I have a LOC (though maybe about half the value). I can access the LOC through any RBC bank machine. I could easily transfer money from the LOC, hand it to my sister (whom I trust with my life) and then when my marriage goes south, the house has a lien against it in the amount of the LOC (since I have a secured LOC - i.e. secured against the house)
As to where the money went?
Casinos. I'm an addict and I have a problem.
Very, very complex topic.
Some useful info to ponder into this discussion:
Many people mistakingly believe that a common law spouse has the same rights and obligations as a married spouse. This is not the case.
Under the Family Law Act a common law spouse has only the right to seek support from his or her partner. There is no right on the part of the common law spouse to seek an equalization payment of matrimonial property from the other spouse nor does the common law spouse have any possessory rights in the matrimonial home
and
The Matrimonial Home
While the Family Law Act allows parties to deduct the value of the assets which they bring into the marriage from the couple’s divisible property, it does not allow a similar deduction to a party who brought the matrimonial home into the marriage.
Pre-nuptial agreements have become an important vehicle which allows parties to create a deduction for the value of the home and only allow for the sharing of any increase in value, or divide the equity in the house according to the parties’ preference.
and it gets more complex if there are children involved, and also if you're cohabitating, ie. cohabitation agreement, versus planning to get married, ie. pre-nup, In Ontario you're considered common law if lived together at least 3 years, may vary in other provinces. Bottom line, get a really good family lawyer, Terb is no place to get sound advice but makes for good thinking for discussion with a lawyer.
Some useful info to ponder into this discussion:
Many people mistakingly believe that a common law spouse has the same rights and obligations as a married spouse. This is not the case.
Under the Family Law Act a common law spouse has only the right to seek support from his or her partner. There is no right on the part of the common law spouse to seek an equalization payment of matrimonial property from the other spouse nor does the common law spouse have any possessory rights in the matrimonial home
and
The Matrimonial Home
While the Family Law Act allows parties to deduct the value of the assets which they bring into the marriage from the couple’s divisible property, it does not allow a similar deduction to a party who brought the matrimonial home into the marriage.
Pre-nuptial agreements have become an important vehicle which allows parties to create a deduction for the value of the home and only allow for the sharing of any increase in value, or divide the equity in the house according to the parties’ preference.
and it gets more complex if there are children involved, and also if you're cohabitating, ie. cohabitation agreement, versus planning to get married, ie. pre-nup, In Ontario you're considered common law if lived together at least 3 years, may vary in other provinces. Bottom line, get a really good family lawyer, Terb is no place to get sound advice but makes for good thinking for discussion with a lawyer.
Ouch, hoisted upon the petard of conflict of laws. I'd forgotten about that since it does not apply here in Pandora.
To my mind that really is an unjust aspect of the law in Ontario.
Yes, it is. That is why I put out there for discussion in case there are guys planning to live common law or getting married.
Just read a case summary of Vanasse v. Seguin - couldn't find the full decision on canlii for some reason. It appears that the Nova Scotia (A.G.) v. Walsh decision is still good law, there is no equalization of net family property for common law couples upon breakup. The Vanasse case involved an unjust enrichment claim, which is decided on the facts on a case-by-case basis.
By the way oagre, since you're obviously well-versed on this subject - do you have a quick answer to whether it's possible to override the strict division of the marital home upon divorce provisions by way of a pre-nup in Ontario? I haven't looked into this in a while, I think the last answer I could come up with was "no". Just wondering whether there have been any new developments over the last little while.
