Common law relationships differ from traditional marriages in that the parties do not have a marriage certificate, and their union is not formalized in a marital ceremony.
Basically, although the parties are not married to each other, they live in a marriage-like relationship.
Common law marriages do not exist in British Columbia but common law relationships do, and are governed by legislation known as the Family Law Act. Since the parties are not married, upon separation, they do not need to seek a divorce.
That does not mean that upon separation, issues related to property and support do not have to be addressed. Because the intricacies of the Family Law Act are challenging, it takes experienced and talented lawyers to properly advise their clients.
If you live in the greater Vancouver area, are living in a common law relationship, and are thinking of ending that relationship, the experienced and knowledgeable lawyers at Spectrum Family Law are here to counsel and guide you to a favorable ending.
What is a Common Law Relationship in British Columbia?
The Family Law Act applies to all relationships that are similar to marriage involving unmarried individuals. The Act defines the term “spouse.” What many people living in such relationships do not know is that upon separation, they may have rights similar to their married counterparts.
Thus, the first question that a person living in a common law relationship must ask is whether the Act is applicable to his or her situation.
Pursuant to the Act an individual is a spouse if:
- The person is married; or
- Has been living in a marriage-like relationship for at least two years with another individual; or
- Has not been living in a marriage-like relationship for two years, but has a child from that relationship.
Thus, if you meet the Act’s definition of a spouse, upon the breakup of your relationship, you will be entitled to specific legal rights.
Common Law Vs Marriage: What is the difference in BC?
Marriage is a union between two people who are legally wed to each other, while the term “common law” refers to two unmarried individuals who live together as a couple. Some common law couples might be unaware that under certain circumstances, the law may deem them spouse and partner respectively—even though they haven’t gone through a legal marriage ceremony. The specific BC legislation surrounding this topic is explored below.
If your common-law relationship ends in British Columbia, the same rules that apply to divorcing married couples will apply to you and your former spouse regarding property division, parenting arrangements, child support payments, and spousal support.
If you are unmarried, BC’s Family Law Act (“FLA”) applies to your rights and responsibilities on separation. If you are legally married, the FLA and Canada’s Divorce Act may both apply, and there could be advantages to claiming under one law or the other when your marriage ends.
How is Property Divided in a Common Law Relationship?
As a spouse in a common law relationship, you have the right to your share of the property that was acquired during the relationship. Your share of such property is generally, but not always, one-half of its value.
The exceptions to the general rule lie in instances of assets that have complex valuations. While you have a right to property acquired during the relationship, you do not have a right to property that your partner acquired prior to the relationship.
However, the right to property acquired during the relationship is not absolute. The Act does not apply to spouses who were in relationships of less than two years’ duration. Thus, while the child support and parenting provisions of the Act apply in such cases, there is generally no division of the property and debts of the relationship.
Despite the wording of the Act, there may, however, be a division of assets in instances where a spouse, while not being able to state a claim under the Act, is able to assert a property claim under the common law.
Is Support Payable After Common Law Separation in British Columbia?
If conditions are met, you may be entitled under the Family Law Act to spousal support and/or child support at the end of the common law relationship. The Act treats married and unmarried spouses similarly with respect to such support payments.
With respect to parental rights, the Act also treats married and unmarried couples similarly. Thus, the same laws and standards apply to issues of guardianship, parenting arrangements and child access, and couples living in common law relationships have rights similar to their married counterparts.
Once again, the experienced lawyers at Spectrum Family Law will be able to offer accurate and expert counsel on your rights.
How to Resolve Common Law Separation Disputes in British Columbia?
While the process for getting a divorce is clear in British Columbia, it is less clear for unmarried couples seeking to end a common law relationship. That said, there are similarities between the two processes.
Stated in its simplest terms, a legal separation in a common law relationship occurs when one of the parties states that they want to end the relationship. No further steps need to occur at that point, and neither party needs to vacate their shared residence.
Once the unmarried parties have determined that they want to end their relationship, they should try to resolve their disputes. The simplest way to do so is for each of them to retain experienced family law attorneys.
Due to their knowledge and understanding of the Family Law Act, such lawyers can offer structured and focused advice that will aid their clients in narrowing and resolving their differences.
If respective counsel are unable to resolve such differences, either party can turn to the judicial system to resolve their dispute under the Family Law Act.
The court process would be similar to that in a divorce. One party would file a Statement of Claim that explains the relief that they are seeking. In response, the other party would file a Statement of Defense, setting forth their positions.
Thereafter, a court might order the parties to mediate their dispute. However, if mediation, and any other proceedings ordered by the court fail, a trial would ultimately be conducted and a judge will issue a decision adjudicating the legal issues that the parties have raised.
What You Need to Know Before Entering a Common Law Relationship in Vancouver
Since the ending of a common law relationship can have unforeseen and long-lasting consequences, it is important that before entering into such a relationship, an individual knows and understands his or her rights.
As noted above, the Family Law Act in British Columbia treats a party as a spouse, with its accompanying rights and obligations, if they have lived together for two years, or have lived together for one year, during which time they have had a child.
The experienced and knowledgeable lawyers at Spectrum Family Law are here for you, and will explain in detail, before you move in with someone, what your legal rights and obligations will be in such a relationship.
Contact Our Common Law Separation Lawyers in Vancouver Today
Issues will arise after your common law partner dies with a will, or intestate, without a will. While a will addresses these issues, and articulates the wishes of the deceased, when no will is left, the surviving spouse in a common law relationship will have certain enforceable rights. Here are a few of the rights that a surviving spouse will have.
First, with regard to the children of the deceased spouse, you can file a petition for guardianship. A court will adjudicate your possession.
With regard to bank accounts, if the parties had a joint bank account with a right of survivorship, the account will belong to the surviving spouse.
Home ownership is another issue. If you and your spouse owned the property as joint tenants, you will now own the entire property as the surviving joint tenant. However, if you held the property as tenants in common, the deceased’s share will pass according to his or her will, or will go to his or her general estate.
If your spouse had life insurance, and you are named as a beneficiary, you will receive an insurance payment.
As a surviving spouse, you also may be entitled to other payments. Depending upon the specific circumstances, you may be eligible to receive any wages that were owed to your spouse. You may also be able to receive workers’ compensation, if your spouse was killed at work. Finally, if your spouse was a member of a union or had a pension plan at work, you, as the surviving spouse, might be eligible for death benefits or life insurance proceeds. You may also be able to receive benefits if your deceased spouse had paid into the Canada Pension Plan.
As can be seen, there are a myriad of complex issues regarding common law relationships and the dissolution of such relationships. If you are thinking about entering into such a relationship, or departing from one, you would be well served to contact the experienced and knowledgeable lawyers at Spectrum Family Law.
Spectrum has dedicated common law separation lawyers ready to help you.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
Our Vancouver office is open 8:30 a.m.—4:30 p.m., Mon—Fri.
Kasia was born and raised in Vancouver, British Columbia, where she completed her Bachelor’s degree at the University of British Columbia. She went on to obtain her Juris Doctorate with Honours from Bond University in Australia.