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Joint family venture for common law spouses

The law of joint family venture and unjust enrichment allow an individual in a common law relationship to make an equitable claim against the assets of their partner. The right of married spouses to an equalization of net family property is a statutory right enshrined in the Family Law Act. Married individuals have an automatic claim against the assets of their spouse (including business interests), unless they have waived these rights through a domestic contract such as a pre-nuptial agreement. Absent this statutory right, common law couples can only seek relief from the courts in equity.

In order to make out a claim for unjust enrichment against an ex-partner, the common law spouse must demonstrate 4 factors: (1) did the couple mutually work towards a common goal?; (2) were their economic interests intertwined or were they each financially independent; (3) was there an intention to undertake a ‘joint family venture’; and (4) did the couple prioritize the family in their decision making?

When a disproportionate share of wealth has been accumulated over the course of a relationship in the name of one party alone, is there a connection that can be drawn between the creation of this wealth and these 4 factors? If so, then you may be able to characterize your efforts as a joint family venture with your common law partner and, thereby, obtain a share of that wealth. Obviously, a pre-condition underlying this type of claim is that you have some objective way of establishing how much wealth has actually been generated by this joint venture.

Once the facts supporting a joint family venture are established, the next step is to determine whether there has been an unjust enrichment of Partner 1 (ie. the creation of wealth such as a business), a corresponding deprivation of Partner 2 (ie. the loss of time, opportunities, compensation), along with the absence of a ‘jurisdic reason’ to explain why. Generally, the law assumes that people don’t do things which are contrary to their own interests for absolutely no reason.

The principles of joint venture and unjust enrichment are highly relevant in the context of long term common law relationships where one individual is fortunate enough to leave the relationship with a profitable, successful business. It’s not unusual when one individual is self-employed, for example, for their partner to be involved at various times in the operation of their business. Both financial contributions, and contributions of time and effort, are relevant in determining unjust enrichment.

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