Common-Law Separation in British Columbia 

When a married couple separates in British Columbia, each spouse has a set of legal rights and responsibilities covering issues like parenting, property division, and support.

But do the same rights apply to common-law separation?

Partners who decide not to marry and, instead live together in a marriage-like relationship, do enjoy many of the same rights as married spouses but there are some important differences to bear in mind.

Let’s look at what you can expect if you are considering entering a common-law relationship in BC or separating from your common-law partner…

What does “common law” mean in British Columbia?

“Common-law” marriages do not exist per se in BC. You will not find the term used in family law here but the Family Law Act in British Columbia does recognize marriage-like relationships and has done so since 2013.

Many of the same rules apply to common-law spouses as to married couples. However, when partners in such relationships separate, there are no formal divorce proceedings. One of the parties simply states that they want to end the relationship and no further legal steps are required.

However, separating couples in BC enjoy most of the same legal rights when it comes to child custody, parenting, child support, spousal support, and property division. This can lead to similar disputes as those that occur in formal divorce proceedings.

Under the terms of the Family Law Act, partners in a relationship are deemed “spouses” and qualify for such rights in BC if any of the following conditions apply:

• They are married
• They have been living in a marriage-like relationship for at least two years
• They have a child from the relationship

Differences between common-law separation and divorce

Common-law partners that live together as a married couple would have no formal marriage ceremony or marriage certificate to show for it.

It surprises some people that the term “spouse” may be used even if the couple is not married. This reflects the equal legal standing that individuals in marriage-like relationships have with wedded couples.

If a common-law relationship ends in BC, the Family Law Act grants equal rights as for a married couple—but the federal Divorce Act does not apply. This is an important difference from divorces between married couples, who enjoy rights and protections under both the Family Law Act and the federal Divorce Act.

For married couples, there may be advantages in claiming rights under the federal Divorce Act that are not available to Common-law partners upon separation.

How is property divided after a common-law separation in BC?

In British Columbia, any individual who separates from a marriage-like relationship is entitled to the same equal share of property acquired during the relationship as a married spouse, i.e., one-half of its value.

The property brought into the relationship is usually excluded from the property division process, although the increase in value during the relationship is subject for division. Also exempt may be gifts and inheritances received, as well as personal injury payouts.

Note that these property division rules only apply to spouses in relationships of two years’ or more. The parenting and child support provisions of the Family Law Act of BC do not require the same two-year minimum period.

This can get quite complicated, which is why it’s generally best to consult with a qualified property division lawyer or divorce lawyer before going too far.

Spousal estate rights after a common-law separation

Another aspect of a common-law relationship to be aware of is the estate rights of spouses if the other spouse dies. Even if the spouse dies intestate (without a will), the surviving spouse has some enforceable rights the same as a married spouse. These include:

• The right to file a petition for guardianship of the children 
• The right to joint bank accounts that have the right of survivorship
• The right to an insurance payment from life insurance as a named beneficiary
• The right to sole ownership of a jointly owned property as the surviving joint tenant

If a property was held as “tenants in common”, the deceased’s share will pass according to his/her will or go to his/her general estate.

Rights to other payments are also possible, including any wages that were owed to a deceased spouse, workers’ compensation (if the spouse was killed at work), and pension plan death benefits.

Can support be claimed after common-law separation in BC?

Under certain conditions, separated spouses in common-law relationships can claim both child support and spousal support in British Columbia.

The Family Law Act treats married and unmarried couples similarly concerning parental rights. The right to child support is the child’s right (rather than the recipient parent’s) and so the law does not specify a two-year minimum relationship in these cases. The same rights of guardianship, parenting arrangements, and child access also apply to unmarried parents as to married ones.

You’re also eligible to ask for spousal support if you lived together in a marriage-like relationship for at least two years or less than two years and have a child with your ex-spouse.

How can a lawyer help you resolve common-law separation disputes in BC?

Many of the same issues come up in common-law separations as in divorces. Resolving these issues can be challenging without legal guidance.

Once Common Law partners have decided to separate, the support and guidance of family lawyers can be of great assistance. Their knowledge of the Family Law Act can help outline each spouse’s legal options and facilitate a resolution of their differences.

If collaboration between lawyers doesn’t work things out, mediation is another alternative option that can be arranged through your lawyer. This may result in a separation agreement being negotiated.

Only in the most serious disputes will litigation be necessary. Most disputes are settled before court intervention is required and, even if the matter does go to court, mediation may be ordered before a trial has commenced. If the case proceeds to trial, a family lawyer can represent you and make a case before the judge, who will ultimately decide on the outstanding issues.

Consult a family lawyer before entering or ending a common-law relationship in BC

The start or end of a common-law relationship may have consequences that you have not considered. Many individuals are unaware of the provisions of the Family Law Act in BC.

When any long-term relationship ends, disagreements should be expected as individuals plan their separate financial and parental futures. Being able to rely on the experience and guidance of a family law expert can make the process smoother than it would otherwise be. Professional legal advice that outlines your rights and responsibilities can help you prepare for what’s around the corner.

If you’re facing the breakdown of a common-law relationship 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.