Charmaine Ferguson and Colin Andrews have been together for three years, since they were 28.
Their lives are tied together in almost every significant grown-up way. They love each other, they support each other — Colin even moved from Edmonton to Calgary so Charmaine could accept a teaching job — and they own property together.
But they’re not married. They’re not even engaged.
“We decided to move, and then we were in a position deciding whether to rent or to buy and so, Colin sold his townhouse and then we bought a house in Calgary together,” Ferguson says. “Marriage was never part of the conversation.”
They’re part of a growing number of Canadians who are choosing to buy property without tying the knot.
The number of common-law couples in Canada rose 13.9 per cent between 2006 and 2011, according to the latest data from Statistics Canada. While there’s no Canadian data on how many of those couples choose to purchase instead of rent, a 2013 study in the U.S by Coldwell Banker Real Estate found that 17 per cent of couples bought a home before they were married, with that number rising to 24 per cent among millennials.
“I think for a lot of young couples buying a home is an economic decision and it’s a better idea than renting. I say this not as a sociologist who studied it, but also as someone who did this personally,” he says. “For me, buying a home with someone felt like less of a commitment than getting married. It’s relatively easy to sell a home if you decide you want to do that, but getting divorced is a much more complicated thing.”
But is it really so much easier to offset assets if a couple falls apart, especially if it’s acrimonious? How does the court divide these assets? What are the risks to entering such an arrangement?
Canada does not have true common-law marriage. Although provinces and various government agencies, like the CRA, may recognize marriage-like relationships in specific contexts, automatic rights to property are not included. But, couples who act like they’re married and buy property together can be entitled to most of the same protections that the law affords legally married couples.
“The Supreme Court of Canada case that was in the last couple of years says if you live as husband and wife, legally you should be treated the same way when it comes to property,” says Donald S. Baker, a family law specialist at the Toronto firm Baker and Baker. “However, as is their wont, they didn’t give any guidelines at all.”
The main difference, he says, is that a married couple, from the date of ceremony, is considered a partnership, regardless of who actually deposits and withdraws from the piggy bank. Upon the breakdown of the marriage, the piggy bank is divided equally, usually to the benefit of the lower-earning spouse.
An unmarried couple, on the other hand, is afforded this protection only insofar as their habits indicate: Do they have a joint bank account? How long have they been together? The courts treat the separation of assets as an “accounting exercise,” Baker says, with the house divided according to who put in what.
“The longer you live together, the deeper the roots and the more you will resemble a legally married couple,” Baker says.
Take Ferguson and Andrews as an example. He provided the entire sum for the down payment, but Ferguson contributes to the mortgage and maintenance, proportional to her income. If they were to break up now, the courts would likely give the entire house to Andrews, and Ferguson’s contributions would be considered rent — she would have no claim to the property.
However, if they were married, the courts would likely award half to Ferguson.
However, if they were married, the courts would likely award half to Ferguson.
Ferguson thinks the law, as it stands, is fair.
“I don’t feel entitled to something that I didn’t earn,” she says. “And it’s not that I don’t feel like this is half my house, it is.… When I have more solid work and as time goes by, it will end up being a more equitable purchase.”
The longer you live together, the deeper the roots and the more you will resemble a legally married couple
Since there is no federal legislation surrounding common-law couples and couples who buy property together may not even want to be considered common-law, Baker strongly recommends sitting down with each other and a lawyer to draft a cohabitation agreement, similar to a marriage agreement — or what’s known in the U.S as a pre-nuptial agreement — which lays out the rights and responsibilities of each person.
It forces the couple to discuss their finances honestly, as well as lay out a plan for who pays the mortgage, who pays the maintenance, who pays for the furniture and how it will be divided in the event of a break up. It has the added bonus of saving a bundle on lawyers in the future.
“Not to have a road map as to what you’re going to do in the event of a breakdown, whether it be common law or marital, in my mind is crazy,” Baker says. “You’re really taking a big chance that you know what the odds.
Danielle Kubes, Special to Financial Post, partial reprint.
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