Anaya Nolan
In British Columbia, common-law spouses can have the same rights and obligations as married couples, even without a wedding ceremony. This includes the division of assets and debts, as well as inheritance rights. To be considered common-law spouses in BC, a couple must live together in a marriage-like relationship for at least two years, or have lived together for less than two years and have a child together. However, the federal government considers individuals common-law spouses for tax purposes after one year of living together in a conjugal relationship. While there is an option to opt-out of common-law status, it may not hold up in court. To prove or dispute common-law status, various factors are considered, including the duration of the relationship, daily contact and emotional connection, public references to each other as partners, and financial arrangements.
| Characteristics | Values |
|---|---|
| Time living together | More than two years, or one year for federal recognition |
| Relationship type | Marriage-like, with shared finances, social lives, and domestic responsibilities |
| Children | Having a child together can impact recognition |
| Assets and debt | Division of assets and debt is treated the same as married couples |
| Inheritance | Common-law partners are entitled to inheritance |
| Opt-out | Couples can opt out of the Family Law Act regime with a written agreement |
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What You'll Learn
Common-law status
In British Columbia, common-law status is a complex issue, especially when it comes to spousal rights and responsibilities. Unlike in other legal systems, common-law spouses in BC can have the same rights and obligations as married couples, even without a wedding ceremony. This can have significant implications for cohabiting or separating couples.
To gain common-law status in BC, a couple must meet the definition of "spouse" in Section 3 of the Family Law Act. This includes legally married spouses, as well as unmarried couples living together in a "marriage-like relationship" for over two years. It also covers couples who have lived together for less than two years and have a child together, but only for claiming spousal support.
The term "marriage-like relationship" is used in BC family law instead of "common-law." This is assessed through various factors, including sharing a roof or bed, having a sexual and personal relationship, dividing domestic work, and intertwining finances and social lives. Essentially, it boils down to whether the couple acts like they're married. While there are guidelines, there is no strict checklist, and each relationship is assessed individually.
The length of time to qualify for common-law status differs between BC and federal law. Under federal law, a couple is considered common-law after one year of living together in a "conjugal relationship" for tax and immigration purposes. However, in BC, common-law status is typically achieved after two years of cohabitation in a marriage-like relationship.
It is important to note that a simple agreement declaring "no common-law" holds little legal weight in BC. To actively opt out of common-law status and its financial obligations, couples can sign a written agreement with a witness, outlining how they will divide assets and debts in the event of a breakup. This is similar to a prenuptial agreement and can be done at any time during the relationship.
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Rights and obligations
In British Columbia, common-law couples are treated similarly to married couples in terms of rights and obligations. Under the BC Family Law Act, common-law couples who meet the definition of "spouse" have the same rights and obligations as married spouses, particularly in the event of a separation. This includes the division of property, debt, and spousal support.
To be recognised as a "spouse" under the Family Law Act, a couple must live together in a "'marriage-like relationship'" for a continuous period of more than two years. Alternatively, if a couple has lived together for less than two years but has a child together, they may also be considered spouses for the purposes of claiming spousal support.
Upon separation, common-law spouses have the right to an equal share of any property acquired during the relationship, excluding pre-relationship property, inheritances, and gifts. Similarly, debts accumulated during the relationship, such as credit cards, student loans, vehicle loans, and mortgages, must be divided equally. It is important to note that these rights and obligations only come into effect after the two-year threshold, and there is no need to fill out any forms or file court documents to gain common-law status.
In terms of inheritance, common-law partners may not have the same rights as married spouses, especially outside of BC. Creating a will that names your common-law partner as a beneficiary can ensure they are protected in the event of your death.
Additionally, common-law spouses in BC have the right to claim spousal support, and they may also be obligated to pay spousal support to their ex-partner upon separation. This right to claim spousal support also applies to couples who have lived together for less than two years but have a child together.
Overall, while common-law couples in BC have gained significant rights and obligations similar to married couples, it is important to note that each province in Canada may have slightly different definitions and requirements for common-law relationships.
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Property division
In British Columbia, 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, like married couples, they will generally share any property acquired during the course of their relationship, but not property brought into the relationship.
The Family Law Act, which came into effect on March 18, 2013, changed the way property is divided for unmarried couples. Before this change, unmarried couples, regardless of how long they lived together, could not apply to the court to divide their property under the family law property division legislation. This often led to complex, lengthy, and expensive litigation, with unpredictable and unfair outcomes.
The law was changed due to the increasing number of common-law families in British Columbia, which is growing at a rate three times faster than married couples. Many of these families have children and resemble married families in many ways. The new law provides a clear and fair way for these couples to resolve their property issues without having to go through the costly and time-consuming litigation process.
To prove a common-law relationship, couples must demonstrate a marriage-like relationship for at least two years. This can be challenging as relationships come in various shapes and forms. Factors that a court will consider include tax returns, social media posts, joint accounts, texts, and evidence of caring for each other during illnesses or periods of absence from work. It is important to note that not all factors are required, and each case will be assessed as a whole.
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Financial considerations
In British Columbia, common-law spouses can have the same rights and obligations as married couples, even without a wedding ceremony. This includes financial obligations, such as the division of income, assets, debts, and property.
Property Division
Unmarried partners who have lived together in a marriage-like relationship for at least two years are treated the same as married couples regarding property division. All property and debt accumulated since the relationship became marriage-like is typically divided equally, excluding pre-relationship property, inheritances, and gifts. However, couples can opt out of these default financial obligations by signing a written agreement with a witness, outlining how they choose to divide their assets and debts in the event of a breakup.
Tax Implications
At the federal level, common-law spouses in Canada are recognised after living together in a conjugal relationship for one year. This status impacts tax filings, and common-law couples should file their income tax returns accordingly. Failing to declare common-law status when eligible can be considered fraud.
Inheritance Rights
In the event of the death of a common-law partner, BC law treats them similarly to married spouses, entitling them to a share of the estate, regardless of the presence of a legal will. The surviving spouse may also be eligible for worker's compensation death benefits and Canada Pension Plan (CPP) benefits, such as a lump-sum payment and a survivor's pension.
When it comes to financial considerations during a common-law separation in BC, it is essential to understand the concept of a marriage-like relationship. If a relationship is brief, devoid of children, and characterised by distinct financial arrangements, it may be easier to argue against common-law status and minimise complexities arising from shared assets. Consulting a lawyer is highly recommended to navigate the specific circumstances of each case and ensure definitive protection.
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Evidence of a marriage-like relationship
In British Columbia, a marriage-like relationship is a prerequisite for common-law status. This means that the couple must have lived together in a marriage-like relationship for a continuous period of at least two years. However, if the couple has a child together, the two-year requirement may not apply, and they may be considered common-law spouses even if they have lived together for less than two years.
The definition of a "marriage-like" relationship in BC includes several factors, such as living under the same roof, having a sexual relationship, sharing meals and household chores, and attending special events as a couple. It is important to note that simply sharing a residence or having a sexual relationship does not automatically qualify as a marriage-like relationship. The court will consider the nature and extent of these factors in determining whether a relationship qualifies as marriage-like.
When proving a marriage-like relationship, the following types of evidence are typically considered:
- Communication records: Phone logs, text messages, and chat messages reflecting daily contact and an emotional connection are valuable.
- Social media posts: Public references to each other as partners, spouses, or using terms like "husband" and "wife" can be strong evidence.
- Tax returns: Listing yourself as common-law on tax returns is considered evidence of a marriage-like relationship.
- Rental agreements: Contracts, lease agreements, or purchases featuring both names indicate cohabitation.
- Financial records: Joint bank accounts, shared expenses, and financial contributions demonstrate financial interdependence.
- Written references: Any written documentation referring to each other as partners or spouses, such as in legal documents or personal correspondence.
- Caregiving: Evidence of caring for each other during periods of illness or injury.
- Shared assets: Major purchases or assets, such as vehicles, properties, or pets, that were acquired or cared for together.
It is important to note that not every factor is mandatory, and each relationship is assessed individually. The evidence should span at least two years to demonstrate the duration and continuity of the relationship. Seeking legal advice from a family lawyer is highly recommended when navigating common-law status and the associated rights and obligations in British Columbia.
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Frequently asked questions
Generally, it takes two years of living together in a marriage-like relationship to be considered common-law in British Columbia. However, if you have a child with your partner, the required time is shorter.
A marriage-like relationship is one where you are living together, and in the eyes of reasonable third parties, you are in a marriage-like dynamic. Intimacy is a factor, but not the defining factor. Other factors include shared bank accounts, shared pets, sharing chores and household responsibilities, planning for the future together, and drafting joint wills.
In British Columbia, common-law relationships are treated the same as marriages. Common-law spouses have the same rights as married couples, including a 50/50 split of shared debts and assets accumulated during the relationship, spousal support, and potential rights to pensions.
Proving a common-law relationship can be difficult due to the marriage-like aspect that needs to be demonstrated. Evidence that can help prove a common-law relationship includes tax returns, social media posts or pictures showing trips and events experienced together, joint accounts, texts, and evidence of caregiving during illnesses or times off work.
