Kara Sears
In British Columbia, common law marriage refers to a legal relationship where two unmarried people live together in a marriage-like partnership for at least two years. While common-law marriages are not legally recognized as marriages, common-law couples are treated similarly to married couples when they separate. In 2013, changes were made to BC's Family Law Act, which extended rights to common-law spouses, making them equal to married spouses. This includes property rights, spousal support, and child support. However, common-law couples are not covered by the Divorce Act and will need to refer to the Family Law Act. Determining whether a relationship is considered marriage-like can be complex and may require legal advice.
| Characteristics | Values |
|---|---|
| Location | British Columbia, Canada |
| Definition | A legal relationship where two unmarried people live together in a marriage-like partnership for at least two years |
| Rights and Obligations | Common-law couples have the same rights and obligations as married couples, including property rights, spousal support, and debt division. |
| Recognition | Common-law marriages are not legally recognized as marriages but may be considered unmarried spouses or domestic partnerships and treated similarly to married couples in certain contexts such as taxes and financial claims. |
| Proof of Relationship | No official test or checklist exists, but factors such as shared meals, household chores, sleeping arrangements, financial support, and care of children are considered by courts. |
| Opt-Out | Couples can opt out of the Family Law Act regime by creating a cohabitation or separation agreement. |
| Historical Context | Common-law marriages have a history in medieval Europe, ancient Greece and Rome, and early modern England and Scotland, often without the need for a marriage ceremony. |
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What You'll Learn
Common-law marriage definition
In British Columbia, common law refers to a legal relationship where two unmarried people live together in a marriage-like partnership for at least two years. This means that they live under the same roof, have a sexual relationship, share meals and household chores, and attend special events together as a couple. Other factors include sleeping arrangements, financial support, and care of children, if any.
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a marriage that occurs without a license or ceremony. Instead, it is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation. The original concept of a "common-law" marriage is one considered valid by both partners but not formally recorded with a state or religious registry. The act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married.
In family law, common-law marriage is a legal marriage and an informal marriage. In states that allow common-law marriage, couples in a common-law marriage may have the same rights as a married couple who went through a formal marriage process. Generally, a married couple is considered common-law married when they live together for a period of time (cohabitation) and hold themselves out to friends, family, and the community as "married".
In British Columbia, there is no such status as "common law", but the term “marriage-like relationship" is used. Couples who are not legally married but live in a common law or “marriage-like relationship” in B.C. are treated similarly to married couples when they separate. The same rights and obligations apply to key matters such as property and debt division, spousal support, and child support.
In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and for many purposes such as taxes and financial claims, they are treated the same as married spouses.
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Common-law marriage in British Columbia
In British Columbia, common-law marriage refers to a legal relationship where two people live together in a marriage-like partnership for at least two years without being legally married. This is also known as a marriage-like relationship.
Under the Family Law Act of 2013, common-law couples are granted the same rights and obligations as married couples, including property division and spousal support. This means that after two years of living together in a marriage-like relationship, couples in BC automatically take on the financial obligations associated with marriage, such as becoming responsible for each other's debts if they break up and being legally required to divide their property if they separate.
It is important to note that there is no formal process for declaring or claiming common-law status in BC. Instead, the status is automatically conferred after two years of living together in a marriage-like relationship, unless the couple actively opts out of the Family Law Act regime. The start date of a spousal relationship, whether through common-law or legal marriage, determines when rights and responsibilities begin under the Family Law Act.
While the law defines common-law marriage as a relationship lasting for at least two years, there can be disputes about whether a marriage-like relationship existed. For example, one party may argue that they lived together for more than two years but not in a marriage-like relationship. In such cases, legal advice should be sought to resolve the dispute.
Overall, while British Columbia recognises common-law marriages and grants equal rights to these couples, there is still confusion among couples about their rights and obligations. It is recommended that individuals seek legal advice to understand their specific rights and obligations under the law.
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Common-law marriage in other jurisdictions
In the United States, common-law marriage is a form of irregular marriage that is currently recognised in seven US states, the District of Columbia, and some provisions of military law. Two other states also recognise common-law marriage after the fact for limited purposes. Common-law marriage is also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact.
All U.S. jurisdictions recognise all validly contracted out-of-state marriages under their laws of comity and choice of law/conflict of laws rules. This includes marriages that cannot be legally contracted domestically, such as the marriage of first cousins in California, which is not permitted in Nevada.
California Family Code Section 308 provides that a marriage validly contracted in another jurisdiction is valid in California, even if it could not be legally contracted within the state. All other states have similar statutory provisions, except for marriages deemed "odious to public policy". Florida abolished common-law marriage in 1968, and Pennsylvania's domestic relations marriage statute no longer recognises common-law marriages contracted after 2005.
USCIS recognises common-law marriages for naturalisation purposes if the marriage was valid and recognised by the state in which it was established. The validity of a marriage is determined by the law of the place where the marriage was celebrated, and the burden is on the applicant to establish the validity of their marriage.
In British Columbia, common-law marriage refers to a legal relationship where two people live together in a marriage-like partnership for at least two years without being legally married. Common-law couples automatically have the same rights and obligations as married couples, even without a wedding ceremony. To gain common-law status, the relationship must meet the definition of "spouse" in section 3 of the Family Law Act, which includes unmarried couples cohabiting in a marriage-like relationship for a continuous period of more than two years.
In Scotland, common-law marriage does not exist. However, until 2006, there was a form of irregular marriage called 'marriage by cohabitation with habit and repute', which was abolished by the Family Law (Scotland) Act 2006. Irregular marriages established before 4 May 2006 are still recognised.
In medieval Europe, marriage was under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated that they took each other as husband and wife, even in the absence of any witnesses.
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Rights and obligations of common-law spouses in British Columbia
In British Columbia, common law describes a marriage-like relationship between two unmarried people who have lived together for at least two years. This is also referred to as a "marriage-like relationship".
Until 2013, BC law treated married spouses and common-law spouses differently. Common-law relationships were not recognised when it came to spousal support or property rights on separation. However, changes to the BC Family Law Act in 2013 extended rights to common-law spouses, making them equal to married spouses. Now, common-law couples automatically have the same rights and obligations as married couples.
Rights and Obligations
Upon separation, unmarried spouses have the same rights and obligations as legally married couples. This includes spousal support, child support, and the division of property and debt.
Qualifying as a Common-Law Spouse
To qualify as a common-law spouse in BC, a couple must live together in a marriage-like relationship for a continuous period of at least two years. A marriage-like relationship is determined by factors such as living under the same roof, having a sexual relationship, sharing meals and household chores, and attending events together as a couple.
It is important to note that simply living together for more than two years does not automatically qualify a couple as common-law spouses. The relationship must also exhibit characteristics of a marriage-like relationship. If a couple has a child together and has lived together in a marriage-like relationship for less than two years, they can claim child support and spousal support but not an equal division of property.
Cohabitation Agreements
Cohabitation agreements can be beneficial for couples considering moving in together or who have already done so. These agreements outline financial issues, such as income, asset, and debt division, in the event of a future separation. They can help mitigate disputes and provide guidance for navigating independent lives.
Annulments
Annulments in British Columbia apply only to legally recognised marriages and declare them void. Common-law relationships are not eligible for annulments but may involve separations where assets and obligations are resolved differently.
Opting Out
It is possible to opt out of the default property division and spousal support rules set out in the Family Law Act through legal planning, typically with a cohabitation or marriage agreement.
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Proving a common-law marriage
In British Columbia (BC), there is no such status as "common law", but instead, the term marriage-like relationship is used. Couples who are not legally married but live in a "marriage-like relationship" are treated similarly to married couples when they separate.
To prove a common-law marriage in BC, a couple must have lived together in a marriage-like relationship for a continuous period of more than two years. A "marriage-like relationship" is defined by certain factors, including:
- Living under the same roof
- Having a sexual relationship
- Sharing meals and household chores
- Attending special events together as a couple
- Sleeping arrangements
- Financial support
- Care of children, if any
There is no test or checklist, but partners may be regarded as living in a marriage-like relationship if they can prove these characteristics to the court. Any evidence of such elements in a relationship will be considered by the courts.
In other jurisdictions, such as Texas, common-law marriage is recognized as a valid and legal way for a couple to marry. To prove a common-law marriage in Texas, couples may need to provide evidence such as lease agreements, tax returns, insurance policies, or affidavits.
It is important to note that the recognition of common-law marriage varies by state and province, and each has its own rules and requirements for proving such a marriage.
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Frequently asked questions
Common-law marriage is a marriage that occurs when two people who are capable of being married and intend to be married live together as a married couple and present themselves as such. Common-law marriages differ from traditional marriages in that they do not require a marriage license or ceremony.
In British Columbia, common-law marriage refers to a legal relationship where two unmarried people live together in a marriage-like partnership for at least two years. BC law treats common-law couples as having the same rights and obligations as married couples, including property rights and spousal support.
To qualify as a common-law spouse in British Columbia, a couple must live together in a marriage-like relationship for a continuous period of at least two years. Factors that determine a "marriage-like" relationship include living under the same roof, having a sexual relationship, sharing meals and household chores, and attending events together as a couple.
