We as British Columbia family law and BC divorce lawyers as well as lawyers acting for unmarried couples are often asked to explain the differences in law that applies to divorcing as opposed to separating unmarried couples.
There are several differences between the legal rights of individuals separating from a marriage versus those that are separating from a Common Law relationship. In this article a very brief synopsis of some of the most significant differences will be highlighted. Please note that this should not to be considered as legal advice that is necessarily relevant to your own situation. Should you be considering a separation or are in the midst of a separation we urge you to seek legal advice as soon as possible.
In British Columbia you must cohabit 2 years in a marriage-like relationship before you are considered as being in a common law relationship. If the common law nature of a a relationship is disputed by one party, the Court will embark on a consideration of all factors regarding the relationship to establish whether it fits under this definition. The facts considered will include but not limited to the sexual involvement of the couple, their economic codependence, roles played by each party (ie. homemaker and breadwinner) and whether there are any children borne of the relationship.
1. Property
When married couples separate, no matter how long the marriage, pursuant to section 56 if the Family Relations Act the parties have a presumptive one-half interest in all family property. While under section 65 of the Family Relations Act one or both separating couples may request a reapportionment of assets in their favour, the fact is that the Courts must be persuaded to depart from the presumptive equal splitting of property. This means that with married couples, upon separation property division is somewhat simplified in quantum percentage save for the rare time when there is evidence to suggest that it would be unfair to proceed with the equal division.
All of the assets, property and debt in a marriage are presumed to be family assets and up for division. A party must demonstrate that the exclusion of an asset, property or debt in the division (or reapportionment) is appropriate or else it will be thrown into the pot for consideration.
Conversely, when common law couples separate, there is no presumptive equal split of family assets. As a matter of fact, there are no family assets per say, but rather a bundle of assets or property in one or both parties’ names which must be plodded through to determine the quantum of ownership that is appropriate in a given situation. One (or both) parties must claim their stake in the assets or property by arguing that the other party has been unjustly enriched by their own contribution. In basic terms, what needs to be established is that one spouse has been enriched, there is a corresponding deprivation to the other spouse, and there is no legal reason for the enrichment.
This argument can attach to all sorts of assets or property, including but not limited to real property (ie. land and home), vehicles, RRSP’s, pensions and bank accounts.
In common law separations the equitable relief of quantum meruit is generally sought alongside unjust enrichment and roughly translates from Latin as “reasonable value of services”. The approach when arguing this relief usually takes the form of establishing the fair market price for such services as housekeeping services, cooking and child rearing, which in some cases can be attached to the trust claim for unjust enrichment as a means of strengthening it or used in the alternative to such a claim (ie. 10 years at $2000 a month average services rendered established and then this claim settled by a portion of the proceeds of sale of the home).
What is disturbing to many common law parties who apply to Court to enforce their legal rights is that unlike married couples, they may have to first prove the common law nature of their relationship (using the factors listed above) and then they must prove their contribution to assets and property which they always were assured of or assumed they had an equal share in. The Court process may include providing proof from a non-title party to a home of the following services rendered when it comes to the home: gardening services, renovations undertaken, money invested and maintenance services. It can get as tedious as reviewing bills for renovation supplies to see who paid them and having 3rd parties testify to who they saw sweeping the deck and clearing the bushes every Saturday and also what might be charged for such services.
2. Spousal Support
As mentioned above, a common-law partnership is only established in British Columbia after 2 years of a marriage-like relationship. It is only after this two-year mark that upon separation one party can claim spousal support from the other. It is important to note that unlike in marriages, the decision to seek relief of spousal support in Court must be made within 1 year of separation. There is no such deadline upon marriage separation nor is there a minimum length of marriage before one party can receive spousal support from the other. In theory, while rare, a party that was only married for a few months and did not cohabit prior to marriage can request and receive spousal support from the other.
The amount and length that one party receives spousal support from the other is determined in identical fashion in the breakdown of common law relationships and marriages.
3. Child Support
There are no significant differences in basic child support received by parties who were in common law relationships versus those in marriage. The amount and length are determined in identical fashion in the breakdown of common law relationships and marriages.
4. Custody and Access
There are no differences between the manner in which these issues are determined in common law relationships versus those in marriages. The determining factor is the best interests of the child(ren).
