British Columbia couples can become spouses, even if they never had a wedding ceremony. That’s because of the way BC family law defines a “spouse.” After two years of living together in a marriage-like relationship, BC couples automatically take on the legal and financial obligations commonly associated with married couples.
When common law spouses separate, they have the same legal rights and obligations as if they were legally married. That means important issues such as spousal support, child support, and dividing property and debt need to be addressed after a common law separation.
Navigating the end of a common law relationship is a complex process, which is why we strongly recommend that you have legal help. The experienced family law lawyers at Onyx Law Group have a deep understanding of the legal issues and challenges that arise in a common law separation. Reach out to us today for a consultation with a dedicated family lawyer.
Today’s post will explore common law marriage and separation. We’ll look at what a common law marriage is, how common law marriage differs from legal marriage, and what common law partners need to know when their relationship ends.
What Is Common Law Marriage?
British Columbia’s Family Law Act defines who is a spouse in BC. Section 3 of the Family Law Act states that people are deemed to be spouses if any of the following conditions apply:
- They are legally married to each other
- They have been living in a marriage-like relationship for a continuous period of at least two years (common law spouses)
- They have lived together for less than two years and have a child together (but in this situation, they are only considered spouses for the purposes of claiming spousal support)
In BC, a common law spouse can be of the same sex or opposite sex as their partner.
How Is Common Law Marriage Different from Formal Marriage?
Up until 2013, BC law treated married spouses and common law spouses very differently. The law didn’t recognize common law relationships when it came to issues like spousal support or property rights on separation. If their former partner wouldn’t agree to pay them back, a non-titled former partner would have to resort to remedies such as bringing a constructive trust claim to recover their fair share of contributions to property. Such claims are notoriously difficult to prove.
Changes were made to BC’s Family Law Act in 2013 that extended rights to common law couples. Because of those changes, common law spouses are equal to married spouses, and they have the same rights and obligations as married spouses upon relationship breakdown. There is no form to fill out or court document to file—they automatically become common law spouses at the two-year mark of their “marriage-like” relationship.
BC is one of the most progressive provinces in Canada in this regard. For example, in Ontario, a couple is not considered common law until they’ve lived together in a marriage-like relationship for at least three years, and Ontario common law couples aren’t automatically entitled to division of family property or a share of the matrimonial home.
Legal Rights and Responsibilities in a Common Law Marriage
If you’re found to be a “spouse” as defined in the BC Family Law Act, you have the same legal rights and responsibilities as a legally married spouse. That can provide significant benefits including inheritance rights, the right to claim compensation if your common law spouse is fatally injured, and eligibility for pension benefits, survivor benefits, etc. (though its important to note that the definition of who qualifies as a “spouse” may vary for the purposes of qualifying for certain benefits, insurance policies, or government programs).
You also have the same legal rights as legally married spouses on separation. The same rules and entitlements that apply to separating married partners apply to you and your common law partner on separation, unless you actively opted out of the Family Law Act regime by entering into a cohabitation agreement.
What Happens When a Common Law Marriage Ends?
BC’s Family Law Act sets out rights and responsibilities that apply on separation. The Family Law Act regime applies unless the common law couple has a cohabitation agreement in place that opts out of it’s automatic imposition, or the couple negotiates a separation agreement that settles issues arising from their relationship in a way that differs from the Family Law Act regime.
If separating common law spouses don’t have a cohabitation agreement in place or can’t agree on how to settle their financial and personal affairs when their relationship ends, a family court case will be necessary. A BC family court judge will be asked to decide issues on behalf of the couple, including important issues such as division of property and time with children (if the couple are parents).
What Property Rights Do You Have as a BC Common Law Spouse?
Unmarried partners who have lived together in a marriage-like relationship for at least two years have the same property rights as married spouses. Once you are deemed to be a spouse under BC’s Family Law Act, all family property and debt you accumulated since your relationship became “marriage-like” is divided equally when you separate, regardless of whose name the property is in.
That includes real estate such as the family home and other property such as bank accounts and pensions, but excludes pre-relationship property, inheritances, and gifts. Debts such as credit cards, student loans, vehicle loans and mortgages must be divided equally, regardless of whose name the debt is in.
Are You Entitled to Spousal Support at the End of a “Marriage-Like” Relationship?
Once you are a spouse as defined under the Family Law Act, you are entitled to claim spousal support (unless you have a written agreement that says otherwise). Conversely, you may be obligated to pay spousal support to your ex at the end of a common law relationship.
If you lived together for less than two years but had a child or children together, the right to claim spousal support also arises.
How Does Custody and Child Support Work?
If you and your partner are parents, you have the same rights and obligations as legally married parents when it comes to child support and parenting arrangements. Support obligations for children are dictated by the Child Support Guidelines, as a function of the parenting schedule and annual income.
Parenting time and decision-making with respect to the children—formerly known as custody and access—are determined in accordance with the Family Law Act and case law interpreting it, unless parents agree otherwise in a separation agreement or written parenting plan.
Divorce Process for Common Law Partners
Here is the most significant difference between married spouses and common law spouses: the Divorce Act does not apply to common law spouses. That means spouses who lived in a marriage-like relationship do not need a divorce order to formally end their relationship. They don’t need to sign anything or apply to court to legally separate. All they need to do is separate.
The situation is different for married spouses. The only way to legally end a marriage is by getting a divorce order. Legally married spouses must apply to the BC Supreme Court under the Divorce Act to dissolve their marriage.
How to Prove Common Law in BC
Sometimes, the existence of a common law relationship is disputed. Dating or being in a romantic relationship on its own doesn’t make you common law spouses, even if it’s a long-term relationship that lasts years or decades. Living together, on its own, also doesn’t suffice (otherwise, roommates would be in for a surprise!).
Instead, the key is whether the relationship is “marriage-like.” Cohabitation (living under the same roof) is one major indicator, but there are common law spouses who live separately while in school, for work, or because of military service, for example.
Whether or not the couple lived under the same roof, there are other important indicators the court will consider in determining whether a relationship was marriage-like. Factors include sexual relations/physical intimacy, having children together, sharing finances or financial support, attending social events as a couple, and filing income taxes as common law spouses. No one factor is determinative.
So much can ride on whether or not you are deemed to be common law spouses. If your relationship is ending and the status of your relationship is in question, you should consider getting legal help as soon as possible. An experienced family lawyer at our law firm can explain the types of objective evidence you’ll need to prove (or disprove) your relationship status and help you gather the documents and proof to support your position.
Examples of evidence you may need include financial documents (joint bank statements, credit card statements, etc.), deeds for real property, income tax returns, social media posts, emails, birthday cards, and other personal correspondence. Statements from family, friends, and coworkers can also be valuable supporting evidence of your interactions and lifestyle.
Need Legal Help with Common Law Divorce in BC?
The lawyers at Onyx Law Group have extensive family law experience. We regularly advise people in common law relationships on how to protect their rights and navigate the legal landscape.
Whether you are looking to prepare a cohabitation agreement, negotiate a separation agreement, need assistance determining whether you have common law status, or want to start a family law court case after common law separation, we will give you clear advice and practical solutions.
We welcome you to reach out to us today to learn more or schedule a consultation.
Frequently Asked Questions
When are you considered common-law spouses in BC?
Under section 3 of the Family Law Act, you are spouses if you have lived in a marriage-like relationship for a continuous period of at least two years. Couples who have lived together for less than two years but have a child together are also spouses, but only for the purpose of claiming spousal support.
Do common-law couples split property the same as married couples in BC?
Largely, yes. Since the Family Law Act, qualifying common-law spouses share family property and family debt on the same basis as married spouses. Each generally keeps their excluded property, such as pre-relationship assets and inheritances, but the growth in that property during the relationship is usually shared.
Is there a deadline to make a claim after a common-law separation?
Yes. The Family Law Act sets a limitation period for claims to divide property and for spousal support. For common-law spouses, the time generally runs from the date of separation. Because these deadlines are strict and can bar a claim, it is important to get advice promptly after separating.
Do you need a divorce to end a common-law relationship?
No. Only legally married couples need a divorce to formally end the marriage. Common-law spouses simply separate, but they still need to resolve the same issues a divorcing couple would, including dividing property and debt, spousal support, and any arrangements for children.