You are in a common law relationship if you live as a couple but are not married.
The new White Paper on Family Relations Act Reform 2010 proposes dramatic property law changes for unmarried spouses as follows:
1. Extend it to common-law spouses who have lived together for two years in a marriage-like relationship or who are in marriage-like relationship of some permanence and have children together.
2. Extends the pension division scheme to unmarried spouses who meet the definition of spouse.
If you are involved in a common law relationship in BC different strategies apply to spouses that require you to get immediate legal advice on your circumstances and how you will be affected by these new proposed changes. You may wish to end or extend the relationship depending on how the new legislation can impact your relationship. call us now so you can plan well in advance of these impending changes.
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. Under most federal laws, that time is one year. Under most provincial laws, that time is two years.
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
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 is now legislation that enables unmarried couples to bring themselves within the asset reapportionment provisions in Part 5 and Part 6 (Division of Pension Entitlement) of the Family Relations Act. Couples may opt in to Part 5 and 6 by making a written marriage agreement about how they will manage or divide their assets. If they do so, the Part 5 and 6 will apply to the agreement and to the property dealt with in the agreement. This means that, upon separation, one party may apply to have the Court vary the agreement on the basis that it is unfair (according to the factors set out in s. 65 of the FRA) without having to prove unjust enrichment.
Some other provinces use a temporal test, (ie. after so many years of cohabitation the married rules apply). BC does not use a temporal test for property division. You must enter into a written agreement with your partner for Part 5 and 6 of the FRA to apply.
Please contact us before signing any document regarding your rights in your relationship.
Recently, the Supreme Court of Canada ruled that it is not discriminatory under the Charter of Rights and Freedoms for the law to treat the division of property subsequent to a common law relationship differently from that subsequent to a marriage.
The Supreme Court of Canada’s long awaited common law/charter challenge decision in Nova Scotia (Attorney General) v. Walsh was released on December 19, 2002. Lorne MacLean of the MacLean Family Law Group was interviewed by CKNW Radio on December 20, 2002. The following is a summary of Mr. MacLean’s comments on the ground-breaking case.
In an eight to one decision, with Madam Justice L’Heureux-Dube dissenting, the Court held:
The definition of spouse in the Nova Scotia Matrimonial Property Act, which only applied the presumption of equal division of matrimonial property to married spouses, was not discriminatory against common-law spouses and in violation of Section 15 (1) of the Charter.
In allowing the appeal of the Nova Scotia Attorney General, the Court held that the Charter was not violated by an act which treated married persons more favourably than those in common-law relationships. The Court held:
- The distinction in the Nova Scotia Act (which also exists in our own Family Relations Act) did not adversely affect the dignity of common-law spouses.
- The Act was not discriminatory as it respected the liberty of persons, an essential charter value, to choose whether or not to marry. That decision encapsulated with in it the spouses consent to be bound by the Act’s property division.
- In contrast, unmarried parties maintain their proprietary rights during and at the end of the relationships. Common-law spouses are free to marry at any time, or to take other steps to deal with their property so as to create an equal partnership between them.
Lorne MacLean predicted that the Supreme Court of Canada would come to this conclusion in his article on the case published in our July 2002 newsletter.
THE SUPREME COURT OF CANADA HEARS GROUND BREAKING COMMON-LAW CHARTER DISCRIMINATION CASE
The Final Dissent
In the Walsh decision, Madame Justice L’Heureux-Dube, a long standing champion of disadvantaged spouses in family matters, rendered her last decision with the Supreme Court of Canada. She differed with the majority who concluded common-law spouses have a choice to get married or not. She held that to conclude a weaker spouse ever has a choice in a relationship is illusory.
Madame Justice L’Heureux-Dube went onto indicate that heterosexual unmarried cohabitants had historically faced disadvantages through a legal system that fails to acknowledge them as legitimate family forms. Although concluding the pre-existing disadvantage has abated in recent years she found the Nova Scotia legislation did not serve a justifiable ameliorative purpose nor did it provide a remedy in response to the actual needs of unmarried persons.
Madame Justice L’Heureux-Dube said that heterosexual unmarried cohabitants had similar needs to their married counterparts when a relationship came to an end and held that the two types of relationships were functionally equivalent. Since the Act treated the needs of unmarried cohabitants at the end of a relationship differently than the needs of a person at the end of a married relationship, the Act sent a message that unmarried cohabitants by virtue of their marital status alone were less worth of respect and value.
Madame Justice L’Heureux-Dube concluded that:
- That the Nova Scotia legislation had nothing to do with choice or consensus but everything to do with recognizing the needs of spouses at the end of a relationship.
- That people are often unaware of their legal rights and obligations and do not organize their personal lives in a manner to achieve specific legal consequences.
- Matrimonial property legislation imposed a wealth distribution regime on marriage breakdown without regards to the wishes of married cohabitants at the beginning of the relationship.
- Many heterosexual unmarried cohabitants cohabit not out of choice but out of necessity.
- That the choice is denied to them by virtue of the wishes of the other partner.
- For the Act to treat common-law persons differently and to deny a remedy to them created a situation of exploitation.
Madame Justice L’Heureux-Dube held that the legislation was contrary to Section 15.1 of the Charter because of the remedies available to the common-law spouse were inadequate relative to those accorded to married spouses. She held that the common-law spouse’s dignity was demeaned by offering remedies that were deficient relative to the married property regime. She held that the Section could not be saved by Section 1 of the Charter. No pressing and substantial objective for the omission of heterosexual unmarried cohabitants from the married property regime existed.
Common Law Custody and Child Support
When two people (either of different sexes or the same sex) live together without being legally married, they may acquire rights and responsibilities with respect to custody, guardianship and access.
With respect to custody of and access to a child born in a common-law relationship, there is no substantial difference between the law relating to married and non-married couples.
With respect to child support, there is also no substantial difference between the law relating to married and non-married couples except that a stepparent may be liable for support their stepchild if certain conditions have been met.
Common Law Spousal Support
Where on the separation of a common law couple (either opposite-sex or same-sex) one spouse is dependent upon the other, the Court may require spousal support to be paid, but only if the spouses lived together in a marriage-like relationship for a period of at least 2 years.
To succeed on a common law spousal claim the common law spouse must commence the action for support within 1 year from the date the spouses ceased to be in a marriage-like relationship of over two years duration.
Some cases have concluded the spouses need not reside under the same roof to be in a marriage-like relationship. Consider that a person may also be able to be in a spousal relationship with more than 1 person at the same time. This means long-term affairs could lead to a support order.
Same-sex spouses may face problems of obtaining proof from third parties supporting their marriage-like relationship because of social pressure and bias, particularly if they have tried to keep their relationship secret.
Studies referred to in recent Charter challenges at the Supreme Court of Canada have indicated same-sex relationships tend to be more egalitarian that opposite sex relationships. Traditional roles of breadwinner and homemaker do not seem to be as common in same-sex relationships. Nevertheless, there are no doubt a great number of cases where a same-sex spouse has suffered a disadvantage because of their role in the relationship and/or as a result of relationship breakdown. There are few reported legal cases, however, possibly reflecting a historical of fear of disclosure of same-sex relationships or the general (erroneous) belief that same sex partners are not entitled to support.
What is the test for proving a marriage-like relationship?
Two cases have set what a court should look at in order to decide if the parties were in a marriage-like relationship.
In the case of M. V. H. (1999) 2 SCR 3, the Supreme Court of Canada stated:
Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
And in the 1986 decision of Gostlin v. Kerigan, the British Columbia Court of Appeal explained as follows:
The legislature has accommodated the diverse interests of different couples by use of the words “who lived together as husband and wife” in the definition of “spouse”. If a couple marry, then they are committed to the maintenance and support obligations of s. 57, no matter on what terms they live together. But if they do not marry, they are not committed to those obligations unless they live together for not less than two years, and unless they do so as husband and wife.
In deciding whether a couple lived together as husband and wife, I would be guided by the scheme and intention of the Act itself. The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s.57 as are voluntarily undertaken by a married couple. So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s.57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.
Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependant on the other, in accordance with a mutual arrangement.
All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.
Gostlin predated the 1997 British Columbia statutory amendments which now provide recognition for same-sex marriage-like relationships. By inserting the words “marriage-like relationships” wherever you see living together as husband and wife, Gostlin v. Kerigan is applicable to modern same-sex spousal support claims.
