Cecily Zamora
The definition of a common-law relationship varies across Canada, and in British Columbia (BC), it is defined by the Family Law Act as a couple living together in a marriage-like manner for at least two continuous years or having lived together for less than two years but with a child together. This differs from the federal definition, which recognises common-law relationships after just one year of cohabitation. In BC, common-law spouses have the same rights and obligations as married couples, including the same rights in the case of a separation, and the same entitlements if their partner dies.
| Characteristics | Values |
|---|---|
| Time living together | 2 years or more |
| Children | N/A |
| Relationship type | Marriage-like |
| Rights and obligations | Same as married couples |
| Property rights | Same as married couples |
| Debt division | Same as married couples |
| Inheritance rights | Same as married couples |
| Tax purposes | Common-law status after 1 year |
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What You'll Learn
Common-law status in BC
In British Columbia, common-law relationships are legally recognised and governed by the province's Family Law Act. The Act defines a "spouse" as including legally married spouses and unmarried couples who have lived together in a "marriage-like" relationship for a continuous period of at least two years. This definition also includes couples who have lived together for less than two years but have a child together, but only for claiming spousal support.
The term "marriage-like relationship" refers to specific characteristics of the relationship, such as living under the same roof, having a sexual relationship, sharing meals and household chores, attending social events as a couple, sleeping arrangements, financial support, and care of children. It is important to note that there is no strict checklist, and no single factor determines whether a relationship is considered "marriage-like".
In terms of legal rights, common-law spouses in BC have the same rights and obligations as married couples, even if they never had a wedding ceremony. This includes the right to an equal share of any property acquired during the relationship, similar to married couples. However, property acquired before the relationship may be exempt. Additionally, common-law spouses may have inheritance rights, such as eligibility for worker's compensation death benefits if their partner dies at work.
When it comes to taxes, the federal government in Canada has a different definition of common-law spouses. For tax purposes, couples are considered common-law after living together in a conjugal relationship for one year. This can impact benefits, pension plans, and Old Age Security.
It is worth noting that common-law status in BC does not require any formal registration or court filing. However, couples have the option to enter into cohabitation agreements or prenuptial agreements to outline their rights and obligations.
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Rights and obligations
In terms of rights, common-law spouses in BC have the same rights as married couples, including property rights and spousal support. Upon separation, each spouse is entitled to 50% of the growth in equity of each spouse's assets, excluding pre-relationship property, inheritances, and gifts. Common-law partners are also entitled to inheritance rights, such as worker's compensation death benefits if their spouse dies at work. Additionally, under federal law, common-law spouses may be treated as married couples for Canada Pension Plan (CPP) purposes if they have lived together for at least a year.
Obligations of common-law spouses in BC include the equal division of debt, including credit card debt, student loans, and vehicle loans. Similar to married couples, common-law partners may also need to address issues such as parenting arrangements and child support obligations upon separation.
It is important to note that Canada's tax laws have a different definition of common-law spouses, considering an unmarried couple to be in a common-law relationship after just one year of living together in a conjugal relationship. This can impact areas such as taxes, benefits, and Old Age Security.
To protect their rights and finances, couples in a common-law relationship in BC may consider creating a cohabitation agreement that outlines financial arrangements and other relevant matters. While it is possible to opt out of common-law status, simply stating non-desire for such status may not be sufficient, and tangible evidence demonstrating the absence of a "marriage-like" relationship may be required. Consulting with a family lawyer is highly recommended to understand the specific rights and obligations in a common-law relationship in BC.
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Common-law separation
In British Columbia, a common-law relationship is defined as a couple living together in a marriage-like manner for at least two continuous years or if they have lived together for less than two years but have a child together. This definition is outlined in British Columbia's Family Law Act ("FLA").
Upon separation, common-law couples in BC are subject to similar rules as divorcing married couples regarding property division, parenting arrangements, child support payments, and spousal support. The FLA applies to the rights and responsibilities of unmarried couples on separation, while married couples may be subject to both the FLA and Canada's Divorce Act.
It is important to note that the date of separation is significant as it marks the start of a two-year time limit for initiating legal proceedings related to property division, debt division, pension allocation, and support claims. Separation is generally constituted by a change in the intentions, words, and actions of either party regarding their relationship status.
When it comes to property division, common-law spouses in BC have the right to their share of the property acquired during the relationship, which is typically one-half of its value. However, they do not have a right to property acquired by their partner before the relationship.
Additionally, it is worth mentioning that common-law spouses in BC may have different entitlements and obligations compared to legally married spouses, especially in areas like taxes, immigration, and estate planning. For example, for federal tax purposes, "living common-law" refers to couples who have lived together for 12 continuous months or share a child, which can impact tax filings, benefits, and pension plans.
Given the legal complexities and obligations associated with common-law separation in BC, it is recommended to consult with a legal professional to understand one's specific rights and responsibilities.
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Common-law inheritance
In British Columbia, common-law spouses can have the same rights and obligations as married couples, including inheritance rights, even if they have not had a wedding ceremony. However, the inheritance laws in BC can be quite complex.
When a person dies without a will, they are deemed to have died "intestate". In such cases, the deceased's estate will be distributed according to the Wills, Estates and Succession Act (WESA). Under WESA, if the deceased was married at the time of their death, the spouse is entitled to the first $300,000 of the estate and half of the remainder. The other half is then divided among any children of the deceased. If there are no children, the spouse inherits everything. However, if the deceased had children from a previous relationship and did not have a will, the children will inherit a portion of the estate, and the spouse may not automatically inherit everything.
Common-law partners do have inheritance rights under WESA, but only if the couple lived together in a marriage-like relationship for at least two years immediately before the death of their partner. The two-year requirement is strictly interpreted, as demonstrated in the case of L.E. v. D.J., where L.E.'s claim was dismissed as the couple had been together for just 355 days shy of the two-year mark.
It is important to note that the federal government of Canada defines common-law relationships as those where couples have lived together in a "conjugal relationship" for at least one year. This definition is relevant for taxes, immigration, and Old Age Security pension. However, for inheritance purposes in BC, the two-year requirement for common-law relationships takes precedence.
Given the complexities of inheritance laws in BC, it is recommended that individuals seek legal advice to ensure their rights are protected and to make informed estate planning decisions.
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Common-law vs marriage
In British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years or if they have lived together for less than two years but have a child together. A relationship is considered marriage-like if certain factors are present, including 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.
Prior to 2013, BC law treated married spouses and common-law spouses differently, especially regarding spousal support and property rights upon separation. Changes to the BC Family Law Act in 2013 extended rights to common-law spouses, making them equal to married spouses. Now, common-law spouses in BC can have the same rights and obligations as married couples, even without a wedding ceremony. For instance, after two years of living together in a marriage-like relationship, couples in BC automatically take on the financial obligations typically associated with marriage, including liability for their partner's debt.
However, it is important to note that the definition of "common-law" varies depending on the context. For federal tax purposes in Canada, "living common-law" refers to couples who have lived together for 12 continuous months or share a child by birth or adoption. This definition also applies in the context of immigration and certain benefits, such as the Canada Pension Plan and Old Age Security.
In terms of estate planning, the treatment of common-law spouses differs from that of legally married spouses in most places in Canada. Outside of BC, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners do not have the same inheritance rights as married spouses under succession laws. While they may have a claim to their partner's estate, it involves a separate process that may not guarantee approval. Therefore, it is crucial for individuals in common-law relationships to have a will in place to ensure their wishes are carried out in the event of their death.
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Frequently asked questions
A common-law relationship in British Columbia is a legal system that offers a unique perspective on spousal rights and responsibilities. Couples who are not legally married but live in a common-law or "marriage-like relationship" are treated similarly to married couples when they separate.
To gain the status of a common-law spouse in BC, a couple must live together in a marriage-like relationship for at least two continuous years. A relationship is considered "marriage-like" if certain factors are present, including living under the same roof, having a sexual relationship, sharing meals and household chores, and attending events together as a couple.
After two years of living together in a marriage-like relationship, couples in BC automatically take on the financial obligations usually associated with marriage. This includes being liable for your partner's debt and having a right to share equally in any property acquired during the relationship.
