# Common law/real estate question:



## sleepless (Jul 18, 2011)

Hey everyone, long-time viewer...first time poster. 

Wondering if anyone can provide some insight on my potential problem. 

B.C. resident, homeowner (townhouse) and been living in a different province the last 4 years with my common-law girlfriend in which the home we lived in was owned 50/50 with each other. 

Now back in B.C. in the townhome that I own 100% outright. 

problem you ask? well, as unromantic as it may seem to some, there is always the possibility of a break-up as with any relationship & I want to protect myself. 

I am told in B.C. 6 months living together makes you automatic common-law.

My question is: 

(a) Does the common-law rule transfer from the previous province over to B.C. regardless of whether we have been living in the same home less than 6 months in our now new province B.C. ? 

and (b) is there anyway to protect myself (i.e. from losing my full 100% home ownership and other potential assets, cash etc?) 

It's my understanding one can take some creative approaches such as transferring/selling property to trustful family members etc. 

What can I do to ensure I don't lose my shirt? 

Thanks in advance to anyone that can help on this matter. 

Sleepless


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## NotMe (Jan 10, 2011)

I don't know about BC specifically but in Ontario the common law act does not refer to property rights in quite the same way as legal marriage does. 
http://info.lawyershop.ca/family/index.php/archives/2005/09/30/common-law-marriage/ 

So you can be 'common-law' but it's not like it's 50/50 right away like it is if you're legally married.

disclaimer: not a lawyer, you should consult one, blah blah


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## MoneyGal (Apr 24, 2009)

If you are not legally married, and you have no children, your home is not a "matrimonial home" and your assets are not subject to division. 

There are a couple of threads on this topic, including a discussion of the situation in BC, on this site: this is probably the most relevant one: 

http://www.canadianmoneyforum.com/showthread.php?t=3596&highlight=common+law

Happy reading.


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## OhGreatGuru (May 24, 2009)

However, both parties should consider a co-habitation agreement for their mutual protection, particularly when there are significant assets involved.


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## kcowan (Jul 1, 2010)

The other thing you might do is take out a maximum mortgage on the TH and invest it personally. Then share the payments on the mortgage as joint living expenses. You will end up splitting the equity but have protected 80% for yourself.


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## MoneyGal (Apr 24, 2009)

If there's no marriage, there's no matrimonial home, and no automatic split of the equity gained in the house. This isn't a bad idea, but it doesn't protect you against a risk you aren't facing.

Editing to add that one common-law spouse may bring a constructive trust suit against another common-law spouse in B.C. for the division of assets, but 1. this requires a case in the B.C. Supreme Court and 2. in the case law in B.C., usually a lot less than 50% is awarded to the non-owning member of the couple. My point is that there is no automatic division of property in the case of a breakdown of a common-law relationship in B.C. or any other province.


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## OhGreatGuru (May 24, 2009)

MoneyGal said:


> I... My point is that there is no automatic division of property in the case of a breakdown of a common-law relationship in B.C. or any other province.


A fact which often comes as a surprise to many long-term common law spouses when the relationship breaks up.


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## kcowan (Jul 1, 2010)

BTW don't sell to another family member. You will put your principle residence exemption in jeapardy.


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## MoneyGal (Apr 24, 2009)

kcowan said:


> BTW don't sell to another family member. You will put your principle residence exemption in jeapardy.


How so, presuming the sale is at FMV?


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