Married, unmarried, and the two-year line
The Family Law Act does not treat all couples the same. Whether you count as a “spouse” depends on the issue.
| Your relationship | Divide property and debt under the Act | Claim spousal support | Child support and parenting |
|---|
| Married | Yes | Yes, if entitled | Yes |
| Lived together in a marriage-like relationship for 2 years or more | Yes | Yes, if entitled | Yes |
| Lived together for less than 2 years, with a child together | No | Yes, if entitled | Yes |
| Lived together for less than 2 years, no child | No | No | Not applicable |
The relationship starts on the earlier of the date you began living together in a marriage-like relationship or the date you married. Whether a relationship was “marriage-like”, and when it began, is decided on the facts: shared finances, how you presented yourselves, whether you lived together. There is no registration, so dates and documents matter.
Parenting and child support do not depend on the relationship at all. Any parent can apply for parenting arrangements and child support, married or not, and child support is set by the Federal Child Support Guidelines in the same way for everyone; see child support.
If you were together less than two years
A couple below the two-year line, with no child, has no claim under the Family Law Act to divide property or for spousal support. That does not always mean each person simply keeps what is in their name. Where one partner contributed money or work to an asset owned by the other, there may be a claim in the general law of unjust enrichment or trust, and property held jointly can be dealt with under the general law of co-ownership. These claims follow different rules and time limits from family law claims, so get advice before assuming there is nothing to claim.
The two-year limit for unmarried spouses
For unmarried spouses who do qualify, the clock is short. Under section 198 you have two years from the day you separated to start a case for a share of property, debt or a pension, or for spousal support. (Married spouses count their two years from the divorce order.) There is no divorce to wait for, so the separation date matters from the start. You can be separated while still living in the same apartment; telling your partner the relationship is over for good, or doing something that shows it, can fix the date. Write it down. The deadline is discussed in How Long After Separation Can You Claim Assets?, and filing for separation in BC explains why there is no separation document to file.
Who stays in the apartment
When a couple rents, there is no house to divide, but there is still a home to decide about. Under the Family Law Act, a family residence includes one that is leased by one or both spouses. A Supreme Court order can let one spouse live there alone for a fixed time, but that order does not give that spouse a lease of their own and cannot last beyond the tenancy itself. Who can stay in the longer term therefore depends on the tenancy agreement: whose names are on it, and what the landlord will agree to. A spouse who leaves should think about rent, the damage deposit and notice before moving out, because the obligations under the tenancy agreement continue. If there is family violence, either court can make a protection order that keeps the other person away from the home.
These questions arise for married couples too, of course. If you own a condo instead, the property section below and our property division page apply.
Property for couples who qualify
For married spouses and unmarried spouses of two years or more, each spouse is entitled to half the family property from the day they separate, regardless of title, subject to any agreement or order. What a spouse brought into the relationship, inherited or was given by someone else stays theirs if they can prove it, although growth in its value while you were together goes into the shared pool. A cohabitation agreement signed while you live together can set different rules; read Is Family Property Always Divided Equally? for exceptions.
Money, accounts and debts on the way out
Separating renters still have things to sort out: joint bank accounts, credit cards, a car loan, furniture, and sometimes savings one partner built up during the relationship. For spouses who qualify, debts taken on during the relationship are family debt and are shared, along with family property, from the separation date. In practice the first steps are protective: close or freeze joint credit, keep records of balances on the separation date, and avoid moving shared money without agreement, because a spouse who disposes of family property in bad faith can be ordered to make up the difference. Each spouse has a duty to give the other full and true information about property, debts and income, whether the case is negotiated or goes to court.
If you can agree, a written separation agreement, signed after full disclosure and with each of you independently advised, settles these points without a court. It is worth doing even for modest assets, because it fixes what each person keeps and ends the argument about the two-year deadline. Our article Do You Need a Separation Agreement Before Divorce in BC? explains how agreements work, and our family mediation lawyers can help reach one.
Which court
Only the Supreme Court can grant a divorce or divide property and pensions. In Vancouver it sits at 800 Smithe Street, roughly 2.8 km by road from Kits Beach. Parenting, support and companion animals can also be dealt with in the Provincial Court. Under rule 7 of the Provincial Court Family Rules, a fresh case goes to the registry nearest the child’s usual home (or, if no child is involved, nearest the home of the first person to file). From Kitsilano, Robson Square at 800 Hornby Street is far nearer than Richmond, about 3.6 km against 10 km in a straight line from the community centre. Robson Square is an early resolution registry, so most applications are preceded by an assessment interview, a parenting program if there are children, and a mediation session, arranged through the Justice Access Centre in the same building (Suite 290). Protection orders and urgent parenting matters are not held up by those steps. Confirm the registry before filing.
Married couples divorce by Supreme Court order once they have been apart a year, or on proof of adultery or cruelty; see how to file for divorce in BC and our divorce lawyers page. If you were never married, there is nothing to divorce.
Parenting after separation
The test for guardianship, parenting time and contact is the child’s best interests and nothing else. Housing shapes the schedule: where each parent can house the children, and how a move would affect the time each spends with them. Where parenting is set by an agreement or order, a guardian planning a move that would significantly affect the child’s relationships must generally give at least 60 days’ notice in writing, and the other guardian then has 30 days to object. See co-parenting responsibilities and spousal support, where ranges come from the Spousal Support Advisory Guidelines.
Our family lawyers
Our family group is headed by Judith A. Janzen, a lawyer since 2000 and a principal of the firm since she and Candace Cho, KC joined forces in 2012. Kitsilano clients may also work with Rupinder Shoker, Susan Kim, Rasjovan Dale, Mason Heller, Shivleen Sidhu, Louisa Ledesma or Katya Richardson, who also offers limited-scope (unbundled) help for people handling their own case. The team page has everyone’s profile.
For a will or estate question, see our Kitsilano estate lawyers.
Common questions
We lived together for 18 months and have no children. Can I claim half of her condo?
Not under the Family Law Act, which requires two years of living together in a marriage-like relationship for property division. If you contributed to the condo, you may still have a claim in unjust enrichment or trust. Get advice promptly.
We were common-law for five years. How long do I have to make a claim?
You have two years from the separation date for property, pension or spousal support. Parenting and child support can be raised at any time.
My name is not on the lease. Can I stay in the apartment?
The Supreme Court can give you exclusive occupation for a period, but it cannot give you rights greater than the tenancy. Longer term, it depends on the landlord and the tenancy agreement.
Who keeps our dog?
If you cannot agree, a court decides, considering who acquired and cared for the dog, any violence or cruelty, and the dog’s relationship with any children. The court will not order shared ownership or shared possession.
How much is an initial consultation?
Onyx bills family matters hourly. Consultation terms are confirmed when you phone (604) 900-2538.
