Common Law Marriage in BC Law

People living in marriage-like relationships without a formal wedding should know their rights under the Family Law Act. This is commonly referred to being a ‘common law spouse’ or a ‘common law marriage’. In this blog, we’ll discuss property division, spousal support, cohabitation and separation agreements for common law spouses in British Columbia.

Defining a Common Law Spouse

There are many misconceptions about common law relationships and the legal concept of common law marriage in family law. Though the courts look at all the circumstances surrounding a relationship, generally, common law spouses are people who have cohabitated in a ‘marriage-like’ relationship for two or more years.

Property Division for Separating Couples

In British Columbia, unmarried partners in a marriage-like relationship are treated comparably to married spouses under the Family Law Act. When these couples separate, all property and debt accumulated since the relationship began are divided equally. This includes assets like real estate, bank accounts, and pensions, but excludes pre-relationship property, inheritances, and gifts.

However, if a couple have lived together for less than two years, property division under the FLA typically don’t apply. If children are involved, the Court considers other factors. In these cases, a cohabitation or separation agreement may provide more rights than might otherwise be available. A person also might be able to claim unjust enrichment, seeking an interest in their partner’s property. Consulting with a family lawyer can help determine what options are best under the individual circumstances.

Cohabitation Agreements

Cohabitation agreements allow cohabitants to outline their individual financial obligations. They can essentially “opt out” of the Family Law Act’s default provisions in some circumstances. These agreements, which you can sign before or after moving in, can work similarly to prenuptial agreements for married spouses. Full financial disclosure and independent legal advice are critical to ensure these agreements are enforceable. For more on how couples and roommates can use cohabitation agreements, check out our article on the basics here.

Spousal Support in Common Law Relationships

If person is a spouse under the Family Law Act, they can claim spousal support if they separate from their partner. This right may also arise if a person has lived together for less than two years but has had a child or children together. It’s important that couples who fit the criteria for spousal support under the Family Law Act are fully aware of their rights and responsibilities so they can address issues in a fair and peaceful way, and potentially avoid needing to use the court system. Unmarried cohabitating couples and parents or separated co-parents can benefit from speaking to a lawyer to understand their position under the Family Law Act, and preparing a plan that outlines their personal and financial responsibilities, depending on their situation.

Separation Agreements for Common Law Couples

At the end of a common law relationship, you can enter into a separation agreement which records your decisions on property division, spousal support, child support, and parenting arrangements. As long as both parties agree, you can settle financial matters in any way you choose, potentially opting out of the Family Law Act’s default provisions. To be sure that a separation agreement is fair and enforceable, spouses must fully disclose their financial situation and get legal advice. If a cohabitation agreement isn’t made during the relationship and the couple can’t negotiate a separation agreement, family court can resolve outstanding issues.

Navigating the legal complexities of these relationships can be as challenging as navigating the dissolution of a traditional marriage. It’s crucial to seek professional legal advice to protect your rights and interests. If a common law couple is considering separation, contacting an experienced family lawyer can be helpful in understanding the impacts of common law status as well as the rights and responsibilities under the Family Law Act. If a common law spouse is considering making a wills variation claim under WESA, consulting with an experienced estate lawyer is critical. An experienced lawyer ensures the interests of their client and the members of their family are upheld and can often help find a unique solution for the specific circumstances at hand.

Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.