There can sometimes be some confusion around the concept of ‘common law’ and what it entails. While the laws may vary slightly in each province, in BC common law is viewed in a very defined way. Many people may not be aware that they are even in a common-law relationship and as such, may be oblivious to the implications this can have on their life.
To protect yourself, your family, or your assets from any unwanted surprises, read on as we explore common law separation in British Columbia, along with the key considerations that everyone should know.
Common-Law and Marriage: What Is a Spouse?
In BC, you don’t have to be married to be considered a spouse. According to the Family Law Act, you are considered a spouse under the following conditions:
- You are or were married
- You have lived with another person in a marriage-like relationship (i.e. common-law), for a certain period of time (usually 2 years or more)
There is one exception to the 2-year minimum to be considered a spouse. If you are living together in a marriage-like (common-law) relationship for less than two years and have a child together, then you are considered a spouse under BC law.
This means that even if you have been living together in a common-law relationship for less than 2 years—if you have a child together then you would typically be entitled to spousal support either as a payor or payee.
If you move in with someone who already has children, you may also be responsible for child support payments upon separation if:
- You helped to support the children for at least one year during your relationship with the children’s parent, and
- The parent applies to the court for support from you within one year of the last time you contributed to the children’s support.
The law usually considers the start date of a spousal relationship the day both people are married or the day they begin living together in a marriage-like relationship (whichever came first).
What Is a Common Law Spouse Entitled to in BC?
As the law sees both married and common-law couples as the same, the rules as they pertain to property division apply for both. Essentially this means that any property that accrues during the course of a marriage-like relationship, is generally shared by both parties. It is important to note, however, that this does not typically apply to any property that was brought into the relationship beforehand.
Another important consideration is that spouses can usually be exempt from the default process as it pertains to property division by creating agreements that would supersede the existing rules. There are several agreements that can be developed to navigate this process but two of the most common are usually cohabitation or separation agreements.
These agreements can help provide clear direction in terms of things like property division, living arrangements, spousal and child support, and other important topics (although child support agreements cannot be made until after you separate or when you’re about to separate according to the BC Family Law Act).
It’s important to remember that the law also treats common-law families the same as married ones in the areas of wills and estates as well as income tax.
Both married and common-law couples share many of the same rights and responsibilities. Understanding what these are can help you make informed decisions when facing a common-law separation in BC. The key takeaways here are that:
- The law views married and common-law couples as the same
- Common-law rules can shift when there are children involved
- All the property that you or your spouse own on the day you separate is considered family property (no matter whose name it’s in), and this property is divided equally (this does not usually apply to excluded property)
- Debt that was accrued during the relationship (often called family debt), is also typically shared equally when you separate, no matter whose name the debts are in (unless you’ve made a separation agreement that addresses this)
The nuances of family law can be complex to navigate. Agreements that were not created properly risk becoming nullified in court so it is generally recommended to have a family lawyer review them or draft them.
If you’re facing a common-law separation in BC and are looking for trusted legal counsel or information pertaining to your situation, reach out to our team of trusted family lawyers. For over 20 years Dreyer Davison has been serving the Fraser Valley, combining a wealth of experience with unmatched expertise.