Cecily Zamora
In British Columbia, couples in a 'marriage-like' relationship are automatically considered common-law spouses after cohabiting for two years. This status carries certain rights and responsibilities, including equal division of debts and assets upon separation. However, couples can opt out of these default financial obligations by signing a written agreement outlining how they will divide their assets and debts in the event of a breakup. While there is no official form or court document required to claim common-law status in BC, it is important to understand the criteria for a marriage-like relationship and the associated legal and financial implications.
| Characteristics | Values |
|---|---|
| Time period | Couples are considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years. |
| Children | If the couple has lived together for less than two years but has a child or children together, they are generally not entitled to the division of property, debt, or pensions. |
| Tax laws | For tax purposes, the federal government considers couples to be in a common-law relationship after one year of living in a "conjugal relationship." |
| Opting out | Couples can opt out of the default financial obligations by signing a written agreement about how to divide their assets and debts in the event of a breakup. |
| Evidence | Evidence for a common-law relationship includes photos, tax returns, financial records, communication records, and social media posts. |
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What You'll Learn
Common law vs marriage
In British Columbia (BC), a common law relationship is defined as two people living together in a "marriage-like" relationship without a formal ceremony. This means that the couple lives under the same roof, has a sexual relationship, shares meals and household chores, and attends special events together as a couple. Other factors include sleeping arrangements, financial support, and care of children, if any.
There is no form to fill out or court document to file to become common-law spouses in BC. You automatically take on the status of a common-law spouse after two years of living together in a marriage-like relationship, unless you actively opt out of the Family Law Act regime.
On the other hand, marriage is a formal legal union recognized across all jurisdictions. In Canada, marriage is a legal process formalized through a marriage license, a ceremony, complete with an officiant and witnesses, and a marriage certificate.
- Legal recognition: Common law relationships are de facto relationships, which means they may exist in reality but are not officially recognized by laws. Marriages, on the other hand, are de jure relationships, legally recognized and supported by marriage licenses, ceremonies, and certificates.
- Financial implications: In BC, common-law couples are treated the same as married couples for the purposes of property and debt division if they split up. They are also entitled to certain inheritance rights, such as making a claim against their spouse's estate if they die and leave them with nothing or too little. However, in some jurisdictions, common-law couples may not have the same tax benefits as married couples, and they may not be able to file joint tax returns.
- Matrimonial rights and responsibilities: In the absence of a will, most provinces in Canada do not automatically grant common-law partners the same rights and responsibilities as married couples in terms of property division, rights to spousal support, inheritance, and survivor benefits.
- Ending the relationship: Both married and common-law couples must file for divorce if they want to separate their lives. Common-law couples can enter into a separation agreement, just like married spouses, to settle issues arising from their relationship, including division of property and debt, spousal support, child support, and parenting arrangements.
In summary, while common law and marriage both refer to long-term relationships, they are not always treated the same way under Canadian and provincial laws. Common law relationships may offer a less formal recognition of a couple's relationship, while marriage provides a wider range of legal rights and obligations.
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Tax implications
In British Columbia, common-law relationships are defined as marriage-like relationships, where couples live under the same roof, have a sexual relationship, share meals and household chores, and attend social events as a couple. While common-law relationships offer a strong alternative to marriage, they are treated differently by the Canada Revenue Agency (CRA) for tax purposes.
According to the federal government, a couple is considered common-law after living in a conjugal relationship for at least twelve continuous months. This definition is crucial for tax implications, as it determines when a couple must file their taxes as common-law partners. If this definition is met, couples must indicate their relationship status and provide information about their partner, including their name, Social Insurance Number, and net income, on their tax returns.
By filing as common-law partners, couples can access certain tax benefits, credits, and deductions. For example, common-law partners can claim both the federal and provincial spousal amount tax credit if they financially supported their partner during the year. Additionally, they may transfer unused tax credits to reduce their household tax rate. These credits can include post-secondary education credits, the Disability Tax Credit, the age credit for those 65 and older, and pension income amounts.
However, there are also disadvantages to filing as common-law. The CRA combines the family income of common-law couples, which can affect eligibility for benefits such as the GST/HST credit, the Canada Child Benefit, and the Guaranteed Income Supplement. It is important to note that even brief separations of less than ninety days within a twelve-month period due to relationship difficulties do not disrupt common-law status for tax purposes. Only separations exceeding ninety days establish a "separated" status for tax filing, and this change in status must be reported to the CRA.
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Property division
In British Columbia, the term used in family law for common-law relationships is a "marriage-like relationship". This is defined by certain factors, including cohabitation, a sexual relationship, shared meals and household chores, attendance at social events as a couple, sleeping arrangements, financial support, and care of children.
The Family Law Act, which came into effect on March 18, 2013, treats common-law couples the same as married couples for the purposes of property and debt division if they split up. Couples who have lived together for at least two years share the same legal rights as married couples in BC, including a 50/50 split of debts and assets accrued during the relationship—excluding pre-relationship property, inheritances, and gifts.
If a couple has lived together for less than two years but had children together, neither partner is generally entitled to a division of property, debt, or pensions under BC's Family Law Act. However, they may have greater rights if they have a cohabitation or separation agreement in place. A cohabitation agreement allows common-law partners to opt out of the Family Law Act's automatic imposition of financial obligations and agree on how they will deal with property and debt should their relationship end. A separation agreement is a written and signed document that records how the couple has agreed to settle issues arising from their relationship, including the division of property and debt.
In the case of the death of a common-law spouse, the surviving spouse may be eligible for worker's compensation death benefits and can make a claim against the estate. Common-law partners are often treated in the same way as married spouses, and if there is no will, no descendants, and no one else with a financial interest in the estate, the estate typically goes to the surviving partner.
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Spousal support
In British Columbia, spousal support refers to the money that one spouse may have to pay to the other for their financial support following a separation or divorce. Spousal support is usually paid monthly but can also be paid as a lump sum.
The determination of spousal support is based on a contractual, compensatory, or needs-based approach. The court will consider the condition, means, needs, and other circumstances of each spouse. Some factors that may be considered include the economic advantages or disadvantages arising from the marriage or its breakdown, financial consequences related to child care, and promoting the economic self-sufficiency of each spouse.
It is important to note that common-law partners can opt out of the automatic financial obligations associated with spousal support. This can be done through a written cohabitation agreement that is properly witnessed and signed, allowing couples to agree on whether they can claim spousal support.
Consulting a family law professional is recommended when dealing with spousal support, as it is a complex area of family law with potential strategic considerations regarding the applicable legal framework.
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Inheritance rights
In British Columbia, inheritance laws provide some protection for common-law spouses left behind after their partner's death. However, the laws surrounding inheritance can be quite complex.
A "marriage-like" relationship in BC is determined by 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.
If a person dies without a will, they are deemed to have died "intestate," and their estate will be distributed according to the Wills Estates and Succession Act (WESA). Under WESA, a spouse includes someone who has lived with another person in a "marriage-like" relationship for at least two years at the date of death. If a common-law spouse dies without a will or descendants, their estate typically goes to their partner.
Common-law partners have no inheritance rights under the laws of intestacy. However, if a common-law spouse dies and leaves their partner with nothing or too little, their partner can make a claim against the estate. Anyone with a financial interest in the estate, including spouses, children, those mentioned in the will, extended family, and people mentioned in previous wills, can contest it.
At the federal level for Canada Pension Plan (CPP) purposes, common-law spouses are treated as a married couple if they lived together for at least a year before the spouse's death, making them eligible for a lump-sum payment and a survivor's pension. However, if the deceased was supporting or supposed to support an ex-spouse and their children, they may also have a claim to these benefits.
It is important to note that the distribution of a deceased person's estate is determined by their will, if they had one. If there is no will, the estate is distributed according to the laws of intestacy, which prioritize certain relatives over others in terms of inheritance.
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Frequently asked questions
A common-law relationship in BC is defined as a marriage-like relationship. This includes living under the same roof, having a sexual relationship, sharing meals and household chores, and attending events as a couple.
You need to be in a marriage-like relationship for at least two years to be considered common-law spouses in BC. However, if you have lived together for less than two years but have a child or children together, you may still be considered common-law.
In BC, common-law couples take on the same financial obligations as married couples after two years of living together. This includes a 50/50 split of debts and assets accumulated during the relationship.
Yes, you can opt out of the default financial obligations by signing a written cohabitation agreement. This agreement should outline how you will divide assets and debts in the event of a break-up.
If your common-law partner dies, you may be able to make a claim against their estate, depending on whether they have a will. In BC, common-law spouses are treated the same as married spouses in terms of inheritance.
