Gavin Howe
In British Columbia, common law 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 means that in BC, unmarried romantic partners who have lived together in a marriage-like relationship for more than two years are treated the same way as married spouses for the purposes of dividing property or debt. This includes a 50/50 split of debts and assets, excluding pre-relationship property, inheritances, and gifts. However, it's important to note that federal law defines the length of time to become common-law differently, considering a couple common-law after one year of living together in a conjugal relationship for tax and immigration purposes.
| Characteristics | Values |
|---|---|
| Time considered common-law by the province | 2 years |
| Time considered common-law by the federal government | 1 year |
| Time considered common-law for taxes | 1 year |
| Time to apply for spousal support after separation | 2 years |
| Requirements | 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, and care of children |
| Opt-out | Yes |
| Financial affairs | Couples can settle financial affairs as they choose |
| Division of assets | 50/50 split of debts and assets excluding pre-relationship property, inheritances and gifts |
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What You'll Learn
Common-law status is automatic after two years
In British Columbia, common-law status is granted automatically to couples who have lived together in a marriage-like relationship for at least two years. This means that, after two years of cohabitation, couples are automatically considered spouses or common-law partners and take on the financial obligations associated with marriage, including a 50/50 split of debts and assets accumulated during the relationship. This is in accordance with BC's Family Law Act of 2013, which grants common-law spouses the same legal rights as married couples.
It is important to note that the two-year requirement is based on provincial law in BC and may differ from federal law, which defines a common-law relationship as one year of living together in a "conjugal relationship." Under federal law, couples who have lived together for a year should file as common-law spouses on their income tax returns. However, the two-year requirement for common-law status in BC carries significant implications for couples regarding property and debt division upon separation.
While common-law status is automatic after two years, couples have the option to enter into a cohabitation agreement before or during their relationship. This agreement can outline how financial affairs will be settled in the event of a separation, allowing couples to opt out of the default equal sharing of property and debt under the Family Law Act. Independent legal advice is recommended when drafting a cohabitation agreement to ensure that the agreement is fair and enforceable.
Additionally, couples who have been together for less than two years but have a child together are subject to the parenting provisions of the Family Law Act. In this case, there may not be a division of debt or property, but the law treats them similarly to married spouses in terms of inheritance rights and spousal support.
Overall, while common-law status is automatic after two years of cohabitation in a marriage-like relationship in BC, it is important for couples to understand their rights and obligations, as well as the potential complexities and challenges that may arise in the event of a separation. Seeking legal advice or consulting resources such as the Family Law BC website can help couples navigate these matters effectively.
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Rights and responsibilities of common-law spouses
In British Columbia, common law refers to a legal relationship where two people live together in a marriage-like partnership for at least two years without being legally married. The BC Family Law Act of 2013 governs the rights and responsibilities of common-law spouses. Under this Act, common-law couples are generally treated as if they were legally married, with some exceptions. Here are the key rights and responsibilities of common-law spouses in BC:
Rights of Common-Law Spouses in BC
- Property Rights: Common-law spouses in BC have the same property rights as married couples. Upon separation, common-law spouses are entitled to a 50/50 split of debts and assets acquired during the relationship, excluding pre-existing property, inheritances, and gifts.
- Spousal Support: Common-law partners may be entitled to spousal support upon separation, depending on certain circumstances.
- Inheritance Rights: In the event of the death of a common-law spouse, the surviving spouse may be eligible for worker's compensation death benefits. At the federal level for Canada Pension Plan (CPP) purposes, common-law couples are treated as married if they lived together for at least a year before the spouse's death, which may make the surviving spouse eligible for a lump-sum payment and a survivor's pension.
- Parental Rights: In the case of a common-law separation involving children, the Family Law Act governs parenting arrangements and child support obligations.
Responsibilities of Common-Law Spouses in BC
- Financial Obligations: Common-law spouses in BC are responsible for each other's debts upon separation. This includes contributions to retirement savings plans and debt accumulated during the relationship, such as student loans.
- Division of Property: Common-law couples are legally required to divide their property if their relationship ends. This includes a right to share equally in any property acquired during the relationship, similar to married couples.
- Opt-Out Option: It's important to note that couples in BC can actively opt out of being considered common-law spouses under the Family Law Act regime. This allows them to avoid the automatic financial obligations and legal consequences associated with common-law relationships.
It's worth mentioning that the definition of a marriage-like relationship in BC includes factors such as living under the same roof, having a sexual relationship, sharing meals and household chores, attending events as a couple, sleeping arrangements, financial support, and care of children. Additionally, the length of time required to establish a common-law relationship may vary depending on the specific area of law and the nature of the relationship.
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Common-law and cohabitation agreements
In British Columbia, couples who live together in a "marriage-like" relationship for at least two years are considered common-law spouses. Common-law spouses have the same legal rights as married couples in matters of property and debt division, including a 50/50 split of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts.
Cohabitation agreements, also known as "living together agreements," are legally binding contracts that outline the rights and responsibilities of unmarried couples who live together. These agreements can provide clarity and confidence for common-law partners, as they outline a mutually agreed-upon framework for financial matters in the event of a separation. While not essential, living under the same roof strengthens a couple's case for being considered common-law spouses.
It is important to note that there is no legal requirement to sign a cohabitation agreement, and one's partner cannot force them to do so. However, consulting with an experienced family lawyer is highly recommended to ensure that one's rights are protected and to receive legal guidance on the complexities of family-related legal matters.
In the absence of a cohabitation agreement, remedies may still be available under the common law, the Divorce Act, and the Family Law Act. For example, under the BC Family Law Act, when common-law couples separate, each spouse is entitled to 50% of the growth in equity in each spouse's assets, beginning from the date of cohabitation until the date of separation or the date that the assets are divided.
Additionally, spousal support may be awarded to a common-law partner under certain circumstances, such as when one spouse's income-earning capacity has been impacted by the role they took on during the relationship.
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Common-law and separation agreements
In British Columbia, couples who live together in a "marriage-like relationship" for at least two consecutive years are considered common-law spouses. This means they are entitled to the same rights as married couples, including a 50/50 split of debts and assets (excluding pre-relationship property, inheritances, and gifts). Common-law spouses are also entitled to spousal support, and in the event of the death of one spouse, the surviving spouse may be eligible for worker's compensation death benefits.
To proactively address the potential complexities of a separation, common-law partners can enter into a cohabitation agreement. This is a legally binding contract that outlines the rights and responsibilities of unmarried couples who live together. Cohabitation agreements can provide clarity and confidence by outlining a mutually agreed-upon framework for financial matters and other aspects of their relationship. While a "no common-law" agreement might express the partners' intentions, it holds limited weight in court proceedings. Judicial precedent prioritizes the objective, observable characteristics of the relationship over the subjective desires expressed in such documents. Therefore, tangible evidence demonstrating the absence of a "marriage-like" relationship is crucial to support a "no common-law" agreement.
Separation agreements, on the other hand, are made when married or unmarried couples decide to separate. These agreements provide clarity and structure by addressing issues such as parenting arrangements, property division, support payments, and other related matters. They are designed to promote efficiency and cost-effectiveness by encouraging couples to settle disputes themselves rather than through the courts. Separation agreements can be worked out before or after a relationship breakdown, and they can be created through negotiation, mediation, or collaboration with legal professionals.
In the case of a common-law separation in BC, each spouse is entitled to 50% of the growth in equity of each spouse's assets, starting from the date they began cohabitating until the date of separation or the division of assets. It is important to note that there is no legal requirement to sign a cohabitation agreement, and no formal documentation is required to prove common-law status. However, certain types of evidence, such as joint bills, driver's licenses, and photos, can be helpful in establishing the existence of a common-law relationship.
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Common-law and inheritance rights
In British Columbia, couples who have lived together in a 'marriage-like relationship' for more than two years are considered common-law spouses. These couples share the same legal rights as married couples, including a 50/50 split of debts and assets, excluding pre-relationship property, inheritances, and gifts.
Upon the death of a common-law spouse, the surviving spouse may be entitled to worker's compensation death benefits. Additionally, under federal law for Canada Pension Plan (CPP) purposes, a couple is treated as married if they lived together for at least a year before the death of a spouse, making the surviving spouse eligible for a lump-sum payment and a survivor's pension.
In the case of intestate (where a person dies without a will), the common-law spouse has the same rights as a legally married spouse, as per the Wills, Estates, and Succession Act (WESA). They are entitled to a share of the deceased's estate, similar to a married spouse. However, if the deceased had children from a previous relationship, the children will inherit a portion of the estate, and the spouse may not automatically inherit everything.
Property ownership can also impact inheritance rights in common-law relationships. If a house is owned as tenants in common, each spouse owns a share of the house. Upon the death of one spouse, their share does not automatically go to the surviving spouse but becomes the property of the designated beneficiary in the will or becomes part of the deceased spouse's general estate. On the other hand, joint tenancy means that spouses hold equal shares of the property, and in the event of the death of one spouse, the surviving spouse automatically inherits the property.
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Frequently asked questions
In British Columbia, couples become common-law spouses after two years of living together in a marriage-like relationship.
Common-law spouses are entitled to the same rights as married couples, including a 50/50 split of debts and assets (excluding pre-relationship property, inheritances, and gifts).
A marriage-like relationship involves 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.
Yes, you can opt out of the default equal sharing of property and debt under the Family Law Act. It is recommended that you seek independent legal advice and have a cohabitation agreement in place.
If you don't have a cohabitation agreement in place, you will need to start a family court case to resolve any outstanding issues arising from your common-law marriage.
