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Same-Sex Marriage and Real Estate

Written by Posted On Tuesday, 08 July 2003 00:00

Since the landmark June 10 Ontario Appeal Court ruling and the Canadian federal government's decision not to appeal that judgement, the city of Toronto has been busy issuing same-sex marriage licenses to gay and lesbian couples who may not have fully evaluated the real estate implications of entering into this legal union.

In my December 17, 2002 column on relationships and real estate ownership "Love Can Put Real Estate at Risk in Canada" , legal implications were explored to identify the complexities involved:

When you get married in Canada, the law treats your marriage as an equal economic partnership. If your marriage ends, the value of property acquired during the marriage and the increase in value of any property brought into the marriage will usually be divided in half and shared between the spouses regardless of who contributed more money or labour, or who is to blame for ending the relationship...In spite of any division of property, family law provides that each spouse has an equal right to stay in the family home, unless a judge decides that one must move out.

In a federal government discussion paper entitled "Marriage and Legal Recognition of Same-sex" , researchers confirmed that Canada is far from the first country in the world--and Ontario is not the first province in Canada--to address whether and how to legally recognize same-sex unions. For instance,

  • Several countries have debated this issue for many years and have come up with a variety of approaches, ranging from same-sex marriage in the Netherlands to the legal recognition of domestic partners, registered partnerships and civil unions in Scandinavia and parts of Europe.

  • The provinces of Quebec, Nova Scotia and Manitoba have enacted legislation that allows gay and lesbian couples as well as opposite-sex couples to record their relationships in a civil registry.

    Although some of these approaches appear to be similar, each is quite different, as it has been created to fit the particular society and to comply with specific constitutional and legal structures. Legal advice, usually helpful in dealing with real estate issues, becomes essential when unraveling the complexities of law, real estate and relationships in Canada.

    By the way, common law relationships add complexity, too. Since 1999, people who live together in same-sex relationships have had the same rights and obligations as opposite-sex common law couples. However, common law couples do not have the same rights as married couples when it comes to sharing property bought while they were living together. (If you live with someone without being married, you are said to be living in a common law relationship or cohabiting.)

    Confirm your rights going into a marriage or common law relationship to protect your real estate now and in the future.

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