Marriage vs. Common Law in British Columbia

The rights and obligations of married couples are outlined in both the federal Divorce Act and British Columbia’s Family Law Act.

For common-law couples, however, only the provincial Family Law Act applies. This legislation covers issues such as property and debt division, custody, and support when couples who live in a “marriage-like relationship” separate in B.C.

Common-law relationships are treated largely the same as marriages under the provincial legislation, with the same rights and obligations for partners as for married spouses.

Let’s consider a little more closely how marriage compares with common-law relationships for separations in British Columbia.

What is the definition of “common-law” in British Columbia?

The term “common law” is not used in legislation in British Columbia. Instead, we use the term “marriage-like relationship”.

This term is used to describe the following scenarios, regardless of the gender of the individuals involved:

• A couple has lived together like a married couple for less than two years but have a child together from the relationship (child support can be claimed).
• A couple has lived together like a married couple for a continuous period of at least two years, even if they are not legally married.

If you’ve been together for 10 years but not lived together, are you considered common-law partners in BC?

Under B.C. law, only couples who have lived in a “marriage-like relationship” continuously for two years can be considered “common-law spouses” and claim the same rights to property division and support as married spouses.

If you do not meet this definition, you have no statutory rights on separation but may retain a common-law claim to an equitable division of property based on contributions made to the relationship.

Note that couples who have a child together but have lived as a married couple for less than two years can claim child support and spousal support but not an equal division of property in B.C.

What is a “marriage-like relationship”?

A “marriage-like relationship” usually means living together and sharing financial, domestic, and social lives. However, no set checklist is provided to test these criteria.

So, if you are required to prove that your relationship is “marriage-like” to the courts, evidence could include any of the following:

• Evidence of physical intimacy
• Documents showing the joint purchase of a home or other property
• Joint bank accounts
• Evidence of the pooling of finances to pay expenses
• Proof of financial assistance to each other
• Proof of attendance at counselling together
• Social proof where you are referred to as “partners” or a “couple”
• Evidence of shared meals, household chores, shopping, etc.
• Evidence of purchased gifts for each other

Are common-law and married spouses treated the same after separation in BC?

Under federal legislation, common-law relationships are not recognized. However, BC’s Family Law Act now confers the same property division, support, and child custody/parenting rights to partners in such relationships as married spouses when they separate.

Changes to the Family Law Act were made in 2013 to recognize that many couples lived together in marriage-like relationships without ever formalizing the marriage.

The main legal difference between marriages and common-law relationships in B.C. is that married spouses also have recourse to the federal Divorce Act for settling the key matters that may arise during a divorce.

How can common-law couples protect themselves in BC?

Couples who are not married but who live together or who are thinking of moving in together can protect themselves with a cohabitation agreement in British Columbia.

Cohabitation agreements are specifically designed to address what happens from a financial standpoint if the relationship ends. They usually address the following issues, which may become contentious in the event of a separation:

• The division of assets and debts
• The division of income (support issues)

The cohabitation agreement can act as an important guide after a breakdown. However, couples should bear in mind that if the matter ends up in court, the agreement will only be legally valid if it is drafted in line with B.C. legislation and approved by the court. Think of cohabitation agreements as similar to prenuptial or postnuptial agreements in marriages. They should be professionally drafted by a qualified family lawyer.

Common-law or marriage: which option offers better legal protection?

Whether a couple lives together as a married couple or in a common-law relationship depends on many factors, not only legal ones. Religious, spiritual, personal, lifestyle, financial, and other factors are involved.

However, couples should also be aware of the legal consequences of their decisions about how to live. If you choose to live apart from each other or have lived together for less than two years and do not have a child together, you may have no statutory rights if you decide to separate.

For married couples, protections apply under both federal and provincial legislation, while those living in a marriage-like relationship for two or more years are afforded similar rights under the provincial legislation.

For further protection, consider drafting a prenuptial agreement or cohabitation agreement with the help of a suitably qualified family lawyer.

If you need to draft a cohabitation agreement or are going through a separation and need legal assistance in the Langley area of British Columbia, DSG Family Law offers a free initial consultation to assess your situation and outline your legal options. Speak with a family lawyer today.