Common Law Relationships
Common Law Relationships in BC
Let’s look at the Law in BC
When are you considered common law in BC?
In British Columbia there are two ways to become deemed a “spouse”. Everyone knows that spouses are married couples, but in 2013 the BC government enacted the Family Law Act. The result is that unmarried romantic partners who have lived together in a “marriage-like” – or common law – relationship for more than two years are considered spouses (not 6 months as many people believe). After you have cohabited for a period of two-plus years you will be treated the same as married couples when it comes to dividing property and debt at the end of the relationship.
However, the “spouses after two years of cohabitation” rule does not apply if you have children. If you are unmarried and have a child with your partner, you are considered spouses for child support and spousal support purposes once you separate. Note – you are deemed to be spouses if you have a child even if there was no marriage-like relationship.
Is a common law spouse entitled to the family business in BC? Photo Credit: K. Papp
How do you prove common law relationships in BC?
It is often the case that upon the breakdown in a relationship, parties may present differing accounts to the court as to when the relationship ended. For obvious reasons, the person being asked to pay spousal support or for a share of property will often argue that even though the parties remained together under the same roof for economic purposes, they had in fact separated much earlier, and thus are not spouses.
By contrast, the person seeking spousal support or property division may say that even though the parties lived in separate residences from time to time, their relationship was so inter-dependent and committed that they meet the definition of spouse under the Family Law Act.
Both of these scenarios have been considered by courts in British Columbia and depending on the evidence presented, both lines of argument have been successful. Each case will turn on its particular set of facts.
Questions the courts may consider are:
- Did the parties declare themselves as “common law” or “single” on their respective income tax returns?
- What address did the parties list on their drivers licenses?
- What address was the parties’ mail delivered to?
- Did the parties continue to receive mail to the address?
- Did the parties refer to themselves, when talking to friends and family, as “husband and wife” “partners” or as “spouses” or in some equivalent way that recognized a long term commitment?
- Did they share the legal rights to their living accommodation?
- Did they share their property with each other?
- Did they share their finances and bank accounts?
- Did one of them surrender their financial independence and become economically dependent on the other in accordance with a mutual arrangement?
- Did the parties maintain sexual relations during the period of time in dispute?
- During the period in dispute, did they continue to celebrate holidays and special events in the same way as before the alleged separation date?
- Did they still share meals, do laundry and participate in the household chores in the same manner as before the alleged separation date?
While these are factors a court will consider, not all are required for the court to reach its decision.
Here is a published family court decision on a case we argued regarding a common law matter: G.A.W. v. C.M.P., 2010 BCSC 532 (Can LII)
What is a Common- Law Spouse Entitled to in BC?
When common law spouses separate they have the right to equal division of all property acquired during the relationship, including the increase in value of assets owned by one party prior to cohabitation. Spouses may also apply for spousal support.
If you have a child together, but were not living together for two years, parenting provisions under the Family Law Act will apply, and you will be eligible to apply for child and/or spousal support, but there typically would not be a division of property or debt.
What is Excluded Property during Common Law Separation?
Excluded Property is that which will not be divided equally under the BC Family Law Act,
- Property acquired after the date of separation
- Property acquired prior to the relationship
- An inheritance, held separately from family finances
- Gifts from a third party;
- Settlement or an award of damages as compensation for injury or loss, unless the settlement represents compensation for a loss to both common law partners or lost income of one partner that would have been of family benefit;
- Property held in trust for one partner;
It should be noted that a common law spouse who claims that property is excluded property is responsible for demonstrating that the property is excluded property; and
It should be noted that, unless there is a prior written agreement, any increase in value of excluded property since the date of cohabitation will be considered family property by the court. This means that the increase is equally divisible between the parties. Rapidly escalating real estate prices mean gains can equal or even outweigh the original principal investment.
Yachts, cars, and other family assets are often divisible upon separation.
Photo Credit: J. Such
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