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Family Law FAQs: Common Law Spouses vs. Married Spouses

If you are in a common law relationship, do you have the same rights on separation as a married spouse? The answer is yes, but only if you qualify as a common law "spouse" as defined by BC's Family Law Act. Here are some top FAQs for common-law couples.

What is the difference between common law and marriage in BC?

Marriage refers to two people who are legally married to each other. The term "common law" generally refers to two unmarried people who cohabit or live together as a couple. Some common law couples are surprised to learn that the law considers them to be Aspouses@ of each other once their relationship meets certain criteria even though they are not legally married to each other. The legal definition of a common law spouse in BC is discussed below.

 

Are common law and married spouses treated the same on separation?

In BC, common law spouses are treated the same as married spouses on breakdown of the relationship. This means the laws with respect to property division, parenting arrangements, child support, and spousal support apply if your common law marriage comes to an end.

One key difference is the source of the law that will apply. If you are unmarried spouses, BC's Family Law Act ("FLA") governs your rights and responsibilities on separation.
If you are legally married, the FLA and Canada's Divorce Act could apply and there may be advantages to which law you claim under when your marriage ends.

Who is a "common-law spouse" in BC?

The common law relationship meaning of "spouse" is set out in section 3 of the FLA. You qualify as a spouse in BC if you:

  • are legally married to another person; or
  • you have lived with another person in a marriage-like relationship for a continuous period of at least 2 years, even if you are not legally married; or
  • you have lived with another person in a marriage-like relationship of less than 2 years duration, but you have a child with that person (but this is only for the purposes of claiming spousal support).


In BC, same gender and opposite gender partners can be common law spouses.

How long must your relationship last in order to be a common law spouse in BC?

As can be seen from the FLA definition of "spouse", the length of period of cohabitation is a key factor in common law relationships. To qualify as a spouse who is entitled to spousal support and division of property and debt, you must have been living common law for a continuous period of at least 2 years. If you were living common law for less than 2 years but have a child together, you qualify to apply for spousal support but are not entitled to claim for division of property or debt on separation.

If you were living common law for less than 2 years and did not have a child together, you are not considered spouses and have no statutory rights on separation under the FLA (though in the latter two situations, you may have a common law/equitable claim to the property based on contributions you made, for example - talk to a skilled family lawyer if you would like to know more about this type of claim).

What is a "marriage-like relationship"? Common law examples

It is important to note that the length of cohabitation is not the only factor in the FLA definition of a "spouse". The quality or character of the relationship also matters. Unmarried people can live under the same roof for many years but not qualify as "spouses" of each other because their relationship is not "marriage-like". It is also possible for an unmarried couple to maintain separate residences but still qualify as common law spouses on separation.

There is no test or standard definition of what constitutes a "marriage-like" relationship, nor is there a checklist of characteristics that will be found in all common-law relationships. The courts have recognized certain factors that are generally seen as indicators of a marriage-like relationship. Examples include sexual relations, financial arrangements with respect to living expenses, owning property together, sharing meals/chores/shopping, social activities, and how third parties view the relationship.

Should common law couples have a Cohabitation Agreement?

If you are thinking of moving in with your partner or already live together, you should consider a cohabitation agreement to address issues regarding the division of income (support), assets and debts if you decide to separate in the future. A Cohabitation Agreement can make the process of separating easier if everyone follows the terms for dividing income, assets and debts as specified in your agreement. It is similar to a prenuptial agreement for an unmarried couple. For example, you can agree to keep all of your assets when you separate. You can also decide whether or not there will be spousal support if the relationship breaks down. These agreements will be reduced to writing by your family law lawyer and each of you will then sign the cohabitation agreement in front of a witness.

Can we make a common law Separation Agreement?

If your common law marriage is ending, you can settle issues by entering into a separation agreement. Common law spouses and married spouses alike are free to enter into contracts between themselves to resolve matter such as spousal support, child support, parenting arrangements, and the division of property and debt.

If you are not able to negotiate a separation agreement, litigation may be necessary to resolve your family law issues. Ms. Little is able to assist you in resolving your family law issues by agreement or in court if you do not agree on how to resolve your family law issues.

Call Valerie M. Little Law Corporation When You Need a Common Law Lawyer

If you are wondering about your rights and obligations at the end of your common law relationship or you are concerned about how BC's unmarried spouse rules apply to property and debt in your situation, contact Valerie M. Little for help. Ms. Little can advise you on common law legal rights and entitlements.

Ms. Little can also assist you by preparing a cohabitation agreement that will apply in the event that you do separate in the future.

If your relationship is at an end, she can assist you in preparing a legal agreement between you and your former partner customized to your particular situation.
Ms. Little is a certified family law mediator and she will work hard to amicably resolve your legal problems outside the court through mediation and negotiation, but if that approach is unsuccessful or unsuitable for your unique situation, she will go to court for you an utilize her over 30 years of experience in the court room to help you achieve the best decision possible. Arrange your consultation with Valerie M. Little, a family lawyer in Coquitlam by calling 604-526-3333 today.

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