Cameron Miranda
In British Columbia, individuals living in a marriage-like relationship for at least two years are considered common-law spouses, with similar legal rights and responsibilities as married couples. However, the definition of the duration to become common-law differs between BC and federal law. Before 2013, BC law treated married and common-law spouses differently, but changes to the Family Law Act that year extended rights to common-law spouses, making them equal to married spouses. This article will explore the concept of common-law relationships in BC, the rights and responsibilities associated with them, and how they differ from federal law.
| Characteristics | Values |
|---|---|
| Time required to be considered common-law | Minimum of two years of living together in a marriage-like relationship, or one year if they have a child together |
| Financial obligations | Couples automatically take on financial obligations associated with marriage, including property division and debt |
| Opt-out | Couples can opt out of default financial obligations by signing a written agreement with one witness |
| Benefits | Being recognized as common-law may reduce or terminate eligibility for certain benefits |
| Immigration | Immigration is governed by federal law, which defines the length of time to become common-law differently than BC |
| Spousal support | Couples living together for less than two years but with a child are considered spouses for spousal support |
| Property division | Property division rules apply to unmarried couples living in a marriage-like relationship for at least two years, including division of assets and debt |
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What You'll Learn
Common-law spouse entitlements
In British Columbia, common-law spouses are entitled to certain rights and obligations. To be considered a common-law spouse, couples must have lived together in a "marriage-like relationship" for at least two years. This term, "marriage-like relationship", is the one used in BC family law, rather than "common-law".
After two years of living together, common-law spouses in BC automatically take on the financial obligations associated with marriage. This includes the division of property and debt. Upon separation, assets accumulated during the relationship, such as contributions to retirement savings plans, property (except excluded property), appreciation on property, and debt, are equally divided.
Common-law spouses may also be liable for each other's debt, including credit card debt, student loans, and vehicle loans. This is different from Ontario, where common-law spouses do not have the right to split property or debt.
In the case of the death of a common-law spouse, the surviving spouse may be eligible for worker's compensation death benefits. If the deceased did not leave a will and had no descendants, their estate typically goes to their partner.
It is important to note that spousal support is not an automatic right for common-law spouses. The spouse claiming support must prove their entitlement, and the obligation depends on factors such as the length of the relationship, financial need, and any prior agreements.
To clarify rights and obligations, common-law partners in BC can consult a family law expert or counsellor, or prepare a cohabitation agreement.
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Common-law and federal law differences
In British Columbia, couples in a marriage-like relationship must live together for at least two years to be considered common-law spouses. This is outlined in the province's Family Law Act of 2013, which governs property division and spousal support. Under this Act, common-law spouses take on financial obligations and entitlements similar to those in a legal marriage. However, the definition of a common-law spouse and the associated rights and responsibilities differ under federal law.
Federal common law in the United States refers to the legal doctrines developed and applied by federal courts rather than the courts of individual states. While most common law is established at the state level, federal common law exists in specific areas, such as admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. These areas are where Congress has granted the courts the power to formulate rules or where a federal rule is necessary to protect uniquely federal interests.
The relationship between federal and state common law has evolved over time. In the 1842 case of Swift v. Tyson, the U.S. Supreme Court held that federal courts hearing cases under diversity jurisdiction must apply the statutory law of the states but could create their own common law. However, in 1938, the Erie Railroad v. Tompkins case overturned this precedent, and federal courts began applying state law as the substantive law in diversity cases, with limited exceptions.
The distinction between federal and state common law has implications for various legal matters, including family law, property division, and spousal support, as seen in the British Columbia example. It is important for individuals to understand the specific laws applicable to their jurisdiction, as the definitions and consequences of common-law relationships can vary between provinces or states and the federal level.
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Common-law and immigration
In British Columbia, couples must live together in a marriage-like relationship for at least two years to be considered common-law spouses. This is different from the federal definition of "common-law", which defines it as living together in a marital-type relationship for at least one year. This discrepancy has resulted in confusion and unintended consequences, such as in the case of a couple who had lived together for 1.5 years overseas and then moved to BC. One partner, believing they were still single under BC law, checked the box for "single" on their immigration application form. However, immigration is governed by federal law, and as they had lived together for over a year, they were considered common-law under federal law. This resulted in the partner unknowingly committing fraud, and the other partner being unable to work until the issue was resolved over a year later.
Under BC's Family Law Act of 2013, common-law spouses are granted the same financial rights and obligations as married couples. This includes the division of property and spousal support. Upon separation, assets accumulated since the start of the spousal relationship are equally divided, including contributions to retirement savings plans, property (except excluded property), appreciation on property, and debt, including student loans.
The recognition of common-law relationships under BC law has important implications for immigration. Canadian citizens and permanent residents in a common-law relationship with a foreign national can sponsor their partner to join them in Canada and become a permanent resident. The sponsor must demonstrate that they have sufficient income or assets to support their spouse once they arrive in Canada and must not be receiving income support benefits or be in bankruptcy proceedings. The sponsorship process can be complex, and there are specific requirements and restrictions that must be met. For example, sponsors must specify the "Class of Application" on the checklist they submit, and there is a five-year sponsorship bar that applies if the sponsorship application was received on or after March 2, 2012. Additionally, if the sponsored spouse or partner leaves Canada during the application process, there is no guarantee they will be allowed to re-enter, especially if they require a visitor visa.
The definition of a common-law relationship and its associated rights and obligations can vary between provinces and federal law in Canada. This discrepancy can lead to confusion and unintended consequences, as seen in the case of the couple moving to BC. It is important for individuals in common-law relationships, especially those navigating immigration processes, to understand the specific laws and definitions that apply to their situation.
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Property division rules
In British Columbia, the dissolution of a common-law relationship triggers legal consequences similar to divorce for married couples. This includes the division of property, determination of parenting arrangements, child support obligations, and potential entitlement to spousal support. The Family Law Act of 2013 governs the rights and responsibilities of unmarried individuals during separation, including property division rules.
The property division rules apply to unmarried couples who have lived together in a marriage-like relationship for at least two years. This means that they will generally share any property that accrues during the course of their relationship, excluding property brought into the relationship, pre-existing property, inheritances, and gifts. This includes contributions to retirement savings plans, appreciation on property, and debt, including student loans accumulated during the relationship.
Couples who have cohabited for two years or more are considered common-law and hold the same legal rights as married couples regarding property and debt division. This includes a 50/50 split of assets and liabilities accumulated during the relationship. It is important to note that the two-year threshold is calculated from the date the couple began cohabiting or the date of marriage, whichever came first.
It is possible to opt out of these default financial obligations under provincial law by having both parties sign a written agreement, witnessed by one person, outlining how assets and debts will be divided in the event of a breakup. This is known as a cohabitation agreement and is easier to obtain before the parties become less amicable. If the couple has been cohabiting for under two years, has no children, and is not married, generally, one spouse would not be entitled to any equity in a home solely in the other spouse's name.
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Child support
In British Columbia, child support is the legal responsibility of parents to financially support their children, regardless of whether the parents were ever married or lived together. The primary responsibility for child support lies with the natural parents, although step-parents and other guardians may also be responsible for paying child support. Child support is typically paid to the other parent to help support the children and is calculated using the Federal Child Support Guidelines.
The amount and duration of child support payments depend on various factors, including the age of the child, their living situation, and their ability to financially support themselves. In BC, the basic rule is that children are entitled to support from both parents if they are over the age of 19 and unable to take care of themselves financially due to illness, disability, or other reasons. It is important to note that child support can end before a child turns 19 in rare circumstances, such as if the child gets married or chooses to live with neither parent. However, if a child leaves home due to family violence or intolerable living conditions, the obligation to provide child support may continue.
The BC Family Law Act and the federal Divorce Act address the duration and amount of child support. Under the Divorce Act, a "child of the marriage" is defined as a child of two spouses or former spouses who is either under the age of majority or has not withdrawn from their charge. If a child is over the age of majority but is still dependent due to illness, disability, or other causes, they may still be considered a "child of the marriage" and eligible for support.
Additionally, there are eight factors that the court will consider when determining child support, as outlined in the BC family law case Farden v. Farden. These factors include the child's enrolment in full-time or part-time studies, eligibility for financial assistance, career plans, ability to contribute to their support through part-time employment, age, past academic performance, and the parents' plans for their education.
Parents cannot withhold child support payments if they are not seeing their child or if there are issues with parenting time or contact. Similarly, a parent cannot refuse to allow the other parent access to their child if they fail to pay or fall behind on child support. Child support is the legal right of the child, and any agreements between parents that waive this right are not valid.
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Frequently asked questions
Individuals living in a "marriage-like" relationship for at least two years are considered common-law spouses in British Columbia.
There are many consequences of being recognised as common-law, including potentially reducing or terminating eligibility for certain benefits.
After two years of living together in a marriage-like relationship, couples in BC automatically take on the financial obligations usually associated with marriage.
The federal law defines the length of time to become "common-law" differently from BC. Under federal law, immigration is also governed differently, and failure to declare common-law status may be considered fraud.
Couples in BC can opt out of the default financial obligations by signing a written agreement, with one witness, about how to divide their assets and debt in the event of a breakup.
