What is the meaning of a Common Law Spouse?

Common_Law_Spouse

Many people in Canada and British Columbia live together before becoming legally married. Some people live together while never having the intention of becoming married. It is important, however, for people in all of these circumstances to understand when their relationship is considered ‘marriage-like’ pursuant to the laws of British Columbia. This is because, if a relationship breaks down the definition of ‘marriage- like’ becomes important in determining what is, and what is not, considered family property.

 

Under the provincial legislation of British Columbia, the Family Law Act (FLA), a person is considered a spouse of another person if those two people have lived in a ‘marriage-like relationship’ for a continuous period of two years or, if they have a child together.  If you are a common-law spouse or a legally married spouse and the relationship breaks down, the date the relationship became ‘marriage-like’ is the date all acquired property is family property.[i]

 

This seems as though it is fairly straightforward, however modern times are changing and certain indicators of what a ‘marriage like relationship’ is are evolving.  For example, the courts of British Columbia have found couples are becoming more and more independent of each other by having separate finances and sometimes separate homes. It is important that both parties understand when their relationship is “marriage-like” so that they can undergo steps, if they wish, to protect their interest in the event of seperation.

 

The following are highlighted characteristics from the courts as to whether or not a couple will be considered in a “marriage like” relationship:

  • How do the parties intend to portray themselves in society?
    • Did they intend to get married?
    • Did friends believe they intended to be together forever?
  • Did they have a healthy intimate life?
    • If they weren’t intimate, were they affectionate to each other in other ways?
  • Did they partake in social activities together?
  • Did the parties live under the same roof?
  • What were the sleeping arrangements?
  • Did anyone else occupy or share the available accommodation?
  • What was the conduct and habit of the parties in relation to:
    • Preparation of meals,
    • Washing and mending clothes,
    • Shopping,
    • Household maintenance,
    • Any other domestic services?
  • Did they participate together or separately in neighbourhood and community activities?
  • What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
  • What was the attitude and conduct of the community towards each of them and as a couple?
  • What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  • What were the arrangements concerning the acquisition and ownership of property?
  • Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
  • What was the attitude and conduct of the parties concerning children?

 

 

For example, in the case of Weber v. Leclerc, 2015 BCCA 492 the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed. The judge applied the correct legal test, and her findings are entitled to deference. In light of the objective evidence and the proper inferences drawn by the trial judge, she made no error in finding that the couple were in a marriage-like relationship.

 

Further, in the case of S.L.M.W. v. M.R.G.W., 2016 BCSC 272 the applicant and respondent owned and maintained two residences. As a matter of law, it is established that parties can maintain two residences and still be in a marriage-like relationship. In this case, the respondent maintained a separate residence for work purposes and this fact did not negate the court finding them to be in a marriage-like relationship.

 

As you can see understanding when a relationship becomes ‘marriage-like’ may not be straight forward. Velletta and company is a full service law firm and if you need assistance in this area, or wish to form a cohabitation or marriage agreement, please contact us.

[i] This is subject to some exceptions known as excluded property. Please note that if the parties married before they were living in a ‘marriage-like’ relationship then that is the date acquired property becomes family property.

 

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education.

Common Law Relationships and Separation

Separation advice Victoria BC lawyers

Even if you are not married, if you live with another person in a marriage-like relationship that person may be considered your spouse.

In order to be considered a spouse for the purposes of dividing property or debt you and the other person must have lived together in a marriage-like relationship for at least two years.

Read moreCommon Law Relationships and Separation

Common Law Relationships and the New Family Law Act

The new Family Law Act Gives Property Rights to Common Law Spouses

Many people do not realize that under the current Family Relations Act, unmarried spouses do not have property rights. That will change when the new Family Law Act (FLA) comes into force on March 18, 2013. The new FLA treats unmarried spouses just like married spouses when it comes to dividing property and debt, with one important difference: separated, unmarried spouses have to make a claim for property and debt division within two years of the date they separated. Separated married spouses do not have time limitation.

[A spouse is someone who is married to another person, or who has lived with another person in a marriage-like relationship for at least two years.]

The FLA says that separated, unmarried spouses have two years from the date of separation to bring an application for property and debt division. Since the FLA comes into effect on March 18, 2013, couples who separate less than two years before the Act comes into effect (so March 18, 2011) have to follow the new rules.

So what law will apply to you?

If you separated before March 18, 2011 but haven’t yet applied to divide property, you are not a spouse (at least for the purposes of property division) under either the old Family Relations Act or the new FLA.If you separated on or after March 18, 2011 but haven’t yet applied to divide property, then you are a spouse under the FLA. You can start a case now, under the existing rules, but once March 18, 2013 comes around, the new rules for dividing property will apply to you, and you will have to change your application to follow the new rules.In you separated on or after March 18, 2011 and you have already applied to divide property under the existing rules, you have until March 18, 2013 to resolve your case under the existing rules. After March 18, 2013, the new rules will apply to you.

What does this mean for you?

If you are an unmarried spouse and want to make a claim for a share of property owned by your spouse, you may want to wait until after the new FLA comes into effect.

But, if you are the unmarried spouse who is the property owner, it makes sense for you to resolve your case quickly, before the new law comes into effect, otherwise the new rules will apply to you.

Obviously, these are complicated issues, but one thing is clear: If your common law relationship is ending, or ended recently, you should seek the advice of an experienced family specialist.