Common-Law vs. Married Spouses: What’s the Difference? In BC we refer to common law relationships as marriage like relationships. Regardless of the nomenclature, people often ask us What’s the difference between a marriage like and married relationship in BC for property division, child and spousal support and child parenting time? Fortunately we have Arissa Javer’s article to help you understand the similarities and the differences between the two.
Common-Law vs. Married Spouses: What’s the Difference? Introduction
In BC, many partners decide to live together rather than getting married. Choosing to live common law has become increasingly common in Canada. In fact, Canada has the highest rate of common-law couples among all G7 countries, with around 23% of couples living common law as of the 2021 Census. As a result, many families in BC are composed of common-law partners, including families with children.
While common-law relationships are different from marriage, they can have similar legal rights and obligations under BC family law, as well as some important differences. This blog post will explore the legal rights and obligations that may apply to common-law couples in BC.
When Are a Couple Considered “Spouses” in BC? Tel: 604 602 9000
Under BC’s Family Law Act (FLA), married couples are spouses for the purposes of the legislation. Unmarried couples can also become spouses in certain circumstances. In a recent high net worth win we obtained a court had to decide if a stormy 2.5 year relationship was marriage like. In the end the court decided it was and our client received roughly $6 million.
In BC, an unmarried couple is generally considered spouses under section 3 of the FLA after living together in a marriage-like relationship for a continuous period of at least two years. Additionally, an unmarried couple may be considered spouses if they have a child together, even if they have not lived together for two years. However, this exception does not apply to property division or pension division under Parts 5 and 6 of the FLA.
Notably, neither the two-year rule nor the child exception is completely automatic. The parties must still have lived together in a “marriage-like relationship.” To determine whether a relationship is marriage-like, the BC courts will look at the relationship as a whole and consider whether, based on the circumstances, it was structured in a way that was similar to a marriage. It is only then that the parties will have rights and obligations similar to spouses, relating to property division, pension division, family debt, and spousal support.
To determine if a relationship is marriage-like, the court may look at the parties’ actual lives and the nature of their relationship rather than relying on a single factor. These factors can include whether the couple:
- lives together;
- shares finances or expenses;
- presents themselves as a couple to family and friends;
- makes decisions together;
- shares household responsibilities; and
- has combined aspects of their lives in a way that resembles a marriage.
Accordingly, living together for two years does not, by itself, determine whether parties are spouses under the FLA.
For example, even if a couple has lived together for more than two years, a BC court may find that their relationship was not “marriage-like” if they maintained separate finances, lived largely separate lives, and did not view themselves as being in a long-term committed relationship. If the relationship is not found to be marriage-like, the parties will not be considered spouses under the FLA.
This has been confirmed in several cases. For instance, in Graham v. Graham, 2001 BCSC 1527, the parties lived together for three and a half years. They contributed to rent and groceries together, but, other than that, they maintained separate assets and distinct financial responsibilities. The court found that this evidence did not establish the permanent mutual support commitment required for a marriage-like relationship, even though the parties were a couple and had lived together for more than two years.
Similarly, in our winning case of Dey v. Blackett, 2018 BCSC 244, the parties lived together for more than two years. They discussed long-term plans, including possible marriage and children, shared sleeping and domestic arrangements, and presented themselves to others as a couple. However, the court found that the relationship was not marriage-like. The claimant was described as “a live-in girlfriend” with “plenty of hope for the future,” rather than a spouse. This was primarily because the parties kept their financial affairs separate and had not formed the intention to live together in a relationship similar to marriage for an indefinite period.
What Does “Marriage-Like Relationship” Mean? Tel: 604 602 9000
The difference between these two terms can be confusing. The FLA uses the term “marriage-like relationship” rather than “common-law relationship,” but the terms are generally used to describe the same type of relationship. “Common law” is the term commonly used by the public to describe an unmarried couple living together, while “marriage-like relationship” is the terminology used in BC’s family law legislation.
Property Division
One of the most important areas in which unmarried spouses may have rights similar to married spouses is the division of property following separation.
Under section 81 of the FLA, family property is generally divided equally between spouses when they separate. This applies to both married and unmarried spouses, as defined under section 3 of the FLA, unless the spouses have agreed otherwise or the court orders an unequal division. However, this does not apply to unmarried couples who have a child together but have not lived together in a marriage-like relationship.
Family property can include assets such as the family home, vehicles, investments, and other property acquired during the relationship. Importantly, the fact that an asset is registered in only one spouse’s name does not necessarily mean that the other spouse has no interest in it.
There are also rules regarding excluded property and family debt. As a result, determining what each spouse is entitled to can require a careful review of the couple’s financial circumstances and the history of their assets and debts.
Common-Law vs. Married Spouses: What’s the Difference? Spousal Support
Unmarried spouses may also be entitled to claim spousal support under the FLA. For spousal support purposes, an unmarried person may qualify as a spouse if they have lived together in a marriage-like relationship for at least two years, or if they have a child together and have lived together in a marriage-like relationship.
However, qualifying as a spouse does not automatically mean that spousal support will be payable. Whether spousal support will actually be payable is a separate question. The court considers a number of factors, including the length of the relationship, the roles adopted by the spouses during the relationship, their economic circumstances, and the objectives of spousal support.
Therefore, being in a common-law relationship does not automatically prevent a person from seeking spousal support after separation.
Common-Law vs. Married Spouses: What’s the Difference? Child Support
Child support is different from spousal support because it is the right of the child, rather than a right arising from the parents’ marital status.
Parents may have obligations to pay child support whether they were married, lived in a common-law relationship, or were never married to one another.
Hence, being in a common-law relationship does not mean that a parent cannot seek child support. Child support is generally based on the child support guidelines, the parents’ incomes, and the number of children.
Are There Any Differences Between Married and Common-Law Spouses?
Although there are many similarities, married and unmarried spouses are not legally identical. For example, married spouses can obtain a divorce, while unmarried spouses do not need to obtain a divorce to legally end their relationship.
There can also be differences in the rules that apply depending on the particular legal issue being considered. The requirements for becoming a spouse may also differ depending on the type of claim being made.
This is why it is important not to assume that being “common law” either gives a person exactly the same rights as a married spouse or leaves them without legal protection. The answer depends on the specific circumstances and the legislation that applies.
Common-Law vs. Married Spouses: What’s the Difference? Does the Date of Separation Matter? Tel: 604 602 9000
The date of separation can be especially important for separating spouses.
Separation can affect issues such as property division, family debt, and limitation periods for bringing certain claims. The date of separation is not only determined by the date one person moves out of the family home. In some circumstances, couples may continue living under the same roof after their relationship has ended.
Because the date of separation can have significant legal consequences, spouses should consider obtaining legal advice if there is disagreement about when the relationship ended, which our lawyers at MacLean Law can provide to you.
Common-Law vs. Married Spouses: What’s the Difference? Conclusion Tel: 604 602 9000
Being married is not the only way to acquire legal rights and obligations in a relationship. Common-law spouses in BC can have many rights relating to property, family debt, and spousal support.
At the same time, common-law and married relationships are not treated the same in every respect. The legal rights and obligations that apply will depend on factors such as the nature and length of the relationship, whether the couple has children, the particular issue being considered, and the applicable legislation.
Understanding these rights and obligations can help couples make informed decisions about their relationship and what happens if the relationship ends.
