Financing Splitsville

Just like income taxes, divorce or separation law also has exceptions

Q: My boyfriend and I live in a condominium that he bought three years ago. I am about to leave him and wondered what my rights are to his unit.

A.A.

A: On separation or divorce, calculations are made to equalize all property, including your common residence. That said, the law also has exceptions, just like when you calculate your income taxes.

If you were formally married, then the equalization process kicks in: The condominium must be equally divided between the two of you.

The unit need not be sold as one spouse can purchase (or equalize) the other's interest. Spouses also have equal rights to live in the unit and can only be forced to move by a court order.

If, however, you lived in a common-law relationship, the rules change. Following the breakdown of the relationship, a common-law spouse does not have a right or entitlement to a condominium registered in the other spouse's name.

If a common-law spouse contributed to purchase, upkeep or mortgage, he or she may be able to claim an interest in the unit up to the amount of that contribution. (You see, it sounds just like the Income Tax Act. It is also an incentive to do work around the home.) If common-law partners are jointly registered as owners, one spouse may bring an application for partition and sale to have the condominium sold. The money would then be divided on sale, or one spouse could buy the other's interest in the unit.

While Ontario couples are considered to be married after three years of living together, this does not mean everything is divided equally. Couples are free to change the rules on division of property by a co-habitation or marriage contract.

Lastly, these rules also apply to same-sex couples.

LegalSpeak: The Condominium Act in Ontario starts, as do all laws, with a definition section. Strangely enough, the word "condominium" is not defined in that section. Simply put, a condominium is ownership of a dwelling, sitting in the air, surrounded by drywall. An owner has rights to the unit and an interest in the hallways, elevators and grounds.

In Quebec, it is called a syndicate of co-ownership.

Les Vandor is an Ottawa lawyer, author and broadcaster. Send your condo questions to him at [email protected]. These answers serve as a guide and you are encouraged to consult a lawyer. We regret that not all questions received can be answered.