BC Common Law Relationships, BC Cohabitation Spousal Support and BC Unmarried Couples Property Division

November 23rd, 2009

Lorne MacLean BC Family Lawyer in the Boardroom

Lorne MacLean BC Family Lawyer in the Boardroom

More BC spouses live in BC common law relationships or marriage like relationships and when they separate the law that applies for spousal support and property division can be different than for married persons.
Recent BC family law articles in the Globe and other papers indicate that more people are choosing to live together without getting married. In BC we call these relationships “marriage like” but most people call them common law relationships. You need to know the differences between property division rights compared to married persons and you also need to know about how and when common law spousal support and child support obligations arise both for BC spousal support and BC child support.

We are often surprised by the lack of information that has been available to our common law family law clients who are more correctly termed to be in a marriage like relationship in BC under our Family Relations Act.

You are in a common law relationship if you live as a committed couple but are not married. Indicia of commitment might be referring to your partner as my wife or my husband, sharing a joint account, raising children together, taking vacations together and committing to care for the other if they became ill or incapacitated.

The law recognizes common law relationships between opposite-sex and same-sex couples after the couple has been in a marriage-like relationship for a certain amount of time which in British Columbia is two years for spousal support claims provided the claim is made within one year of when the parties last lived together subject to very rare exception. The Spousal Support Advisory Guidelines apply to marriage like relationships. A step parent can be liable for BC child support if they live in a marriage like relationship for greater than 2 years and supported their step child even minimally during that period.

In 1997, the Family Relations Act, R.S.B.C. 1996, c.128 (the FRA) was amended to provide that for all purposes under that Act (except division of family property), “Spouse” includes unmarried persons of the same or opposite sex who are in a marriage-like relationship for at least two years.

Property Rights Are Not the Same as for Married Persons

Although there have been significant changes in applicable laws which have extended many of the rights and responsibilities of marriage to common-law couples, there are still very significant differences.

If you are in a common-law relationship, you should be aware of the following:

Unlike marriage, there is no presumption that assets should be divided equally at the end of a common-law relationship.
When a married couple separates, they are subject to Part 5 of the Family Relations Act, which stipulates that their marital property should be divided equally unless it would be unfair to do so. If a married spouse wants an unequal division, it is up to them to justify the fairness of that result.This legislative structure works to protect married spouses who may not be the legal owner of significant marital assets, like the family home.

Common-law asset division, however, is based on trust doctrine where the spouse who does not have legal ownership of the property (i.e. their name is not on the title or ownership documents) must prove they deserve a share of the property. A spouse may do this by showing that they made monetary contributions or a contribution of time and effort that exceed the value of benefits they received.

The non-owning spouse must show:

That he or she suffered a deprivation or loss because of his or her contribution;
That the owning spouse received a benefit or gain (e.g. an increase in the value of the property) from the contribution of the non-owning spouse; and
That there is no fair reason for the non-owning spouse’s efforts to go unrewarded.
The courts will conduct a cost-benefit analysis and determine whether the non-owning spouse received as many benefits or more benefits than they conferred on their spouse. If the non-owning spouse gave more benefits than they received, an interest in the property and/or some money may be awarded to them as compensation.

There are important strategic advantages and disadvantages that you should discuss with us at the Maclean Family Law Group and there are time limits to makes claims for support that require you to act promptly. Call us for advice.

One Response to “BC Common Law Relationships, BC Cohabitation Spousal Support and BC Unmarried Couples Property Division”

  1. Reg Poncsak says:

    If a person makes a constructive trust claim to property, does he have to prove it in court before he can retain possession, or is this an act of mischief?

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