Wed | Jun 23, 2021

Matrimonial property claims can be complex

Published:Monday | July 21, 2014 | 12:00 AM


Property claims between parties who were married, cohabited in common-law unions or simply lived together, have led to an interesting and constantly evolving body of jurisprudence.

Each domestic arrangement presents its own set of unique circumstances. For marriage or common-law union, there is the Property Rights of Spouses Act. A separate body of law governs those who merely lived together. The guidelines and factors for consideration in the former are fairly settled and certain:

If the property in question was the family home - owned by either spouse but used as the principal place of residence for both spouses, the starting point is 50/50.

That 50/50 rule may be amended upon proof that the property was owned prior to the marriage or cohabitating, was a gift to one spouse intended for his/her sole benefit, if the marriage was short or there are circumstances that justify a departure from the rule.

For all other property, the party claiming an interest must prove contribution. That contribution may be monetary (direct financial input) or non-monetary (for example, taking care of the home or children).


For unmarried cohabiting couples, there is no statutory protection. To determine a claim, the court must consider principles of common laws and equity. The three frequently used words in this area are 'common intention', 'contribution' and 'reliance detriment'. There is also the question of whether the property was registered in the parties' joint names or in one of their names. In other words:

The starting point is to say that the form of ownership demonstrates the interest each party is deemed to have in the property. Property registered in one party's name is presumed to belong to that party only, while property registered in joint names is presumed to be jointly owned.

The party claiming an interest in the property (the claimant) must prove that the owner holds the property in trust for his or her benefit. That could be based on a conversation, agreement or some form of arrangement that shows that the parties had a common intention that the person claiming has an interest in the property.

There must also be proof of contribution having been made by the claimant towards the acquisition, maintenance or improvement of the property. That contribution no longer needs to be measured in strict monetary terms.

It must be shown that the party making the claim relied on the agreement, representations or arrangement to his or her detriment. That is to say that the claimant made contributions he or she would not otherwise have made had the common intention not existed.


Where only one of the parties is named on the title, the claimant is likely to face difficulties in overcoming those hurdles. In the typical domestic case, it is not common for the parties to have a written agreement or structured discussions in respect of property ownership to establish their common intention. In that case, the court is forced to draw inferences from all the circumstances of the case. In the absence of that common intention, the contributions are said to have been voluntary, and not made in the context of an attempt to establish ownership in the property. Even after the first two issues are cleared, it must still be proven that it would be unconscionable for the owner to deny that the claimant has an interest in the property.

While there are cases in which claimants have succeeded, there are many more local cases in which they have failed.

Perhaps the word of caution to would-be contributors in a domestic arrangement is that, if you intend to make a contribution towards property that is registered only in the name of your partner, you should ensure that the premise on which you are doing so is clear. In other words, if you are merely volunteering to assist, then there need not be a discussion or agreement. But if you intend to have a beneficial interest in the property through your contribution, that intention must be discussed and agreed before the assistance is given. If not, then your ability to prove that you have an interest in the property could become an insurmountable problem.

Sherry Ann McGregor is an attorney-at-law and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send comments and questions to or lifestyle