Common Law in BC: A Comprehensive Guide For Unmarried Couples

Common Law in British Columbia is a legal system that offers a unique perspective on relationships, particularly when it comes to spousal rights and responsibilities. Unlike other legal systems, common law spouses in BC can have the same rights and obligations as married couples, even if they never had a wedding ceremony. This can have significant implications for couples who are living together or considering separation.

In this article, we’ll explore the intricacies of Common Law in BC and what it means for those in common law relationships. Whether you’re just starting out with your partner or in the midst of a separation, understanding the nuances of Common Law in BC is crucial.

Have specific questions about common law in BC? At Onyx Law Group, our experienced family law lawyers understand that navigating common law can be a complex and challenging process. Contact Onyx Law Group to discuss the specifics of your case today!

What is Common Law in BC?

Change in BC family law expanded rights for common law partners

Up until 2013, BC law treated married spouses and common law spouses very differently. The law did not recognize common law relationships when it came to issues like spousal support or property rights on separation. Changes were made to BC’s Family Law Act in 2013 that extended rights to common law spouses making them equal to married spouses. BC is one of the most progressive provinces in Canada in this regard. 

Gaining common law status

To gain the status of common law spouse in BC, your relationship must meet the definition of “spouse” in section 3 of the Family Law Act.  The definition of “spouse” includes legally married spouses, as well as unmarried couples who have lived together in a marriage-like relationship for a continuous period of more than two years. It also includes people who live together for less than two years who have a child together, but only for the purposes of claiming spousal support. We will talk about rights on separation in more detail below.

How to claim common law status

First off, it is important to note that Canada’s tax laws have a different definition for common law spouses. You are considered common law by the federal government after just one year of living in a “conjugal relationship.” So, when you file tax returns, you claim common law status after only one year. This can impact benefits, Canada Pension Plan, and Old Age Security.  

With that point out of the way, let’s look at how to get common law status in BC. There is no form to fill out or court document to file. You automatically take on the status of a common law spouse after two years of living together in a marriage-like relationship unless you actively opt out of the Family Law Act regime (see below for a discussion of cohabitation agreements). The day you begin living together in a marriage-like relationship is the start date for determining when rights and responsibilities will kick in under the Family Law Act. 

If you live together for less than two years and did not have a child together, you are not common law spouses in BC.

What is a “marriage-like relationship”?

We’ve used that phrase a few times now. What does it mean? In BC, a relationship is “marriage-like” if certain factors are present. Those factors include living under the same roof, having a sexual relationship, sharing meals and household chores, and attending special events together as a couple. Other factors include sleeping arrangements, financial support, and care of children, if any. It is not a strict checklist, and no single factor is determinative of whether you are in a marriage-like relationship.  

In some situations, there is dispute about whether a marriage-like relationship exists.  If you have lived with another person for at least two years and break up, they may take the position that you were not in a marriage-like relationship. Conversely, you may want to argue that you were not in a marriage-like relationship; if your former partner is not a “spouse” they do not have rights to property division or spousal support when your relationship ends. In either case, you should get legal advice from an experienced family lawyer without delay. 

Common law in BC: Rights and responsibilities on separation

What assets is a common law spouse entitled to in BC?

Unmarried partners who have lived together in a marriage-like relationship for at least two years are treated the same way as married spouses for the purposes of dividing property and debt. Once you are deemed to be a spouse under BC’s Family Law Act, all property and debt you accumulated since your relationship became “marriage-like” is divided equally when you separate. That includes real estate, bank accounts, and pensions but excludes pre-relationship property, inheritances, and gifts. 

If you lived together for less than two years but had a child or children together, then generally speaking, neither partner is entitled to division of property, debt, or pensions under BC’s Family Law Act. You may have greater rights if you have a cohabitation agreement or separation agreement in place that says so. You may also be entitled to bring an unjust enrichment claim seeking an interest in your partner’s property. Talk to a family lawyer as soon as possible to explore an “equitable claim” against your former partner. 

Can a common law spouse claim spousal support?

Once you are a “spouse” as defined under the Family Law Act, you are entitled to claim spousal support at the end of a common law relationship. Conversely, you may be obligated to pay spousal support to your ex.

If you lived together for less than two years but had a child or children together, the right to claim spousal support also arises. 

Common law separation: Opting Out of the Family Law Act Regime

Get a Cohabitation Agreement in place

You can enter into a cohabitation agreement with your spouse before or after you move in together. This will operate in the same way as a prenuptial agreement or marriage contract used by legally married spouses. 

A written cohabitation agreement that is properly witnessed and signed allows people in common law relationships to opt out of the Family Law Act’s automatic imposition of financial obligations. Common law partners can agree on how they will deal with property and debt should their relationship end, and they can agree whether they can claim spousal support. Full financial disclosure from both parties to the cohabitation agreement is crucial; without it, the cohabitation agreement may not be enforceable. Independent legal advice is also highly recommended.

Negotiate a Separation Agreement

At the end of a common law marriage, you can enter into a separation agreement just as married spouses can. A separation agreement is a written, signed document that records how you have agreed to settle issues arising from your relationship. That includes division of property and debt, spousal support, child support, and parenting arrangements.

As long as you both agree, you can settle financial affairs in any way you choose, meaning that you can opt out of the default equal sharing of property and debt under the Family Law Act, and that you can agree to waive any right to claim spousal support. Full financial disclosure is just as important here as it is with cohabitation agreements. Without it, a separation agreement may be overturned. Independent legal advice is also critical to ensuring that your separation agreement is fair and enforceable. 

If you didn’t get a cohabitation agreement in place during your relationship, and aren’t able to negotiate a separation agreement after your relationship ends, you will need to start a family court case to resolve the outstanding issues arising from your common law marriage. 

Are you Common Law in BC? Need legal advice?

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. Reach out to us for an initial consultation to learn more. 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 case after common law separation, we will give you clear advice and practical solutions. Contact Onyx Law Group today at (604) 265-9914.