People in virtually any kind of relationship can wind up having a family law problem. Some people are married, others have lived together long enough to qualify as spouses without being married, while others have had a child together without having much more of a relationship with each other at all. But family law isn't just about relationships between spouses or parents. It also concerns the relationships between grandchildren and grandparents, between nieces and nephews and aunts and uncles, and between children and other adults with significant roles in their lives.
The first section of this chapter — the part you're reading now — focuses on the different kinds of family relationships recognized by the Family Law Act and the Divorce Act. In this part, you'll learn about the range of family relationships that the law is concerned with, and how the law impacts on people in these relationships. (We'll also talk about some common urban myths involving married and unmarried relationships.) More detail about the legal rights and duties involved in married relationships, unmarried spousal relationships, and relationships involving unmarried people who have had a child but never lived together is provided in the sections that follow. Other sections in this chapter talk about adopting children and provide more information about having children using assisted reproduction.
Being in a family relationship can create legal obligations in addition to the moral and social obligations that we usually associate with family relationships. Under the old common law, for example, a husband had the legal duty to provide his wife and children with shelter, food, and the other basic necessities of life. Although this obligation still exists under the federal Criminal Code, and is shared by both husbands and wives, it hasn't been a part of the legislation on family law since the English Divorce and Matrimonial Causes Act was passed in 1857. As society has evolved, so have the obligations different kinds of family relationships trigger.
Family law in British Columbia deals with four kinds of family relationships:
- Married spouses: People who are married spouses have been wed at a ceremony conducted by someone licensed by the province to perform marriages. Married relationships end when a court makes an order for the spouses’ divorce.
- Unmarried spouses: People who are unmarried spouses have lived with each other in a "marriage-like relationship" for a certain minimum amount of time. (This is the sort of relationship people mean when they talk about "common-law spouses.") The relationship between unmarried spouses ends when they separate. Unmarried spouses do not need to get a divorce.
- Parents: People who are parents have had a child together. They might be married to each other or have no relationship with each other at all, apart from the fact that they are both parents. "Parent" can include people who have helped someone have a child through assisted reproduction, by being an egg donor, a sperm donor, or a surrogate mother, depending on what an assisted reproduction agreement might say about who’s a parent and who’s not.
- Grandparents and extended family members: Grandparents and other family members may have a parent-like relationship with a child who is not their biological child, especially when they have spent a lot of time caring for the child.
It's important to know what kind of relationship you're in, as each of these different kinds of family relationship involve different rights and different obligations.
To be able to marry, you must be unmarried, sane, relatively sober, and over a certain age, among other things. You must be married by a person properly licensed to conduct marriages, who might be a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia, and the law about marriage, is described in detail in the Married Spouses and the Law on Marriage section of this chapter.
Many, if not most, people who marry live together before they tie the knot. It is important to know that a lot of the rules about property and debt under the provincial Family Law Act are based on the date when a married couple began to live together or the date they marry, whichever is earlier.
Social attitudes about marriage have changed a lot over the last three centuries. Marriage once had a much more important legal significance than it does today. Before about 1890, a married couple was legally considered to be one person. A husband took ownership of all of his wife's property on marriage and could use his wife's assets as collateral for loans. His wife, on the other hand, lost the ability to hold a bank account in her own name, sell her property without her husband's consent, or start a court proceeding or run a business in her own name. Women who hadn't married, on the other hand, could own property in their own names, have bank accounts, sue and be sued, and run a business as they like.
Marriage was once of such importance that people could be sued for interfering, or even attempting to interfere, with a married couple's relationship. Until 1972, it was a civil offence to falsely boast that you were married to someone (called jactitation of marriage) or to lure a spouse away from a married relationship (called criminal conversation), and a court proceeding could be brought against someone for loss of the benefits of marriage (called loss of consortium).
All of these old rules are now extinguished in British Columbia and married couples are no longer considered to be a single legal person, with the husband having absolute power over his wife and her property. Since 1978, married women have had exactly the same property rights as both single women and men. A husband can no longer apply for credit in his wife's name or use her property to get a loan without her permission. On top of this, the old rules restricting marriage to opposite-sex couples have now been abolished, first by the courts and then as a result of the federal Civil Marriage Act.
If there's a difference between married and unmarried spousal relationships, it's probably that today marriage implies a greater sense of personal commitment to a relationship and a willingness to treat the relationship as a true partnership. Marriage suggests something more permanent than an unmarried relationship. It may signal a greater personal dedication to the relationship and a willingness to stick it out through the good times and the bad.
Under the law of British Columbia, however, the most significant difference between married and unmarried spousal relationships is that only married spouses need a divorce or an annulment to end their relationship.
If one or more of the requirements of a valid marriage are lacking, a marriage may be cancelled, or annulled. To obtain an annulment, one of the parties must begin a court proceeding asking for a declaration that the marriage is void. A marriage may be annulled if:
- a female spouse was under the age of 12 or a male spouse was under the age of 14, the common law ages of puberty,
- one or both of the spouses did not consent to the marriage,
- a male spouse is impotent or a female spouse is sterile going into the marriage,
- the marriage cannot be consummated,
- the marriage was a sham, or
- one or both of the spouses agreed to marry as a result of fraud or misrepresentation.
You can find more information about void marriages, voidable marriages, and annulment in this chapter's section on Married Spouses and the Law on Marriage.
Separation is simple. To separate, the spouses simply start living "separate and apart" from each other, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer, sign something, or file some sort of document in court to obtain a separation. To separate, you just need to call it quits, tell your spouse that it's over and then start acting like it's over.
Even though separation may signal the breakdown of an emotional relationship, it doesn't end the legal relationship between married spouses. The only way marriages really end is through death or divorce.
Divorce is the legal termination of a marriage. To obtain a divorce in British Columbia, one or both spouses must begin a proceeding in the Supreme Court asking for a divorce order, and at least one of the spouses must have normally lived in the province — they must have been habitually resident in the province — for at least one year before the court proceedings start.
The court will make a divorce order only if it believes that the married relationship has broken down. Under the federal Divorce Act, there are three ways to prove marriage breakdown:
- the spouses have been separated for at least one year,
- one of the spouses committed adultery, or
- one of the spouses treated the other spouse with such mental or physical cruelty that they could not continue living together.
It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for marriage breakdown has been established, the courts will allow the divorce application, regardless of any objections the other spouse may raise.
Section 3(1) of the provincial Family Law Act defines spouse as including people who married each other as well as:
- people who have lived together in a marriage-like relationship for at least two years and,
- people who have lived together in a marriage-like relationship for less than two years but have had a child together.
That's why this resource talks about "married spouses" and "unmarried spouses."
In British Columbia, unmarried spouses who have lived together for at least two years have all of the same rights and obligations under the Family Law Act as married spouses. However, unmarried spouses who lived together for less than two years don't qualify as "spouses" for the parts of the act that talk about dividing property and debt, but they are spouses for the parts about spousal support and child support:
Have lived together for at least two years Have lived together for less than two years
but have a child together
Yes Yes Time with children Yes Yes Child support Yes Yes Spousal support Yes Yes Family property and
The federal Divorce Act doesn't apply to people in unmarried relationships, whether they're "spouses" under provincial law or not.
The relationship between unmarried spouses begins on the date they began to live together in a "marriage-like relationship." This might be the date that a couple who are dating moves in together, or it might be the date that a relationship between housemates becomes a committed, romantic relationship.
The section on Unmarried Spouses talks about when a relationship becomes "marriage-like."
Unmarried spouses are separated when they begin to live "separate and apart" from each other, whether under the same roof or in separate homes. You do not need to see a lawyer, sign something, or file some sort of document in court to be separated. You just need to call it quits and tell your spouse that it's over, and then start acting like it's over.
Unmarried spouses do not need to get divorced.
You are a parent if you have a child, including by adoption and, in some circumstances, by assisted reproduction.
Under section 26(1) of the Family Law Act, a child's parents are presumed to be the child's birth mother and biological father, regardless of the nature of the parents' relationship with each other.
It's normally pretty easy to tell who the birth mother of a child is. It's not always so easy to tell when a man is the biological father of a child. Section 26(2) of the Family Law Act says when a man is presumed to be the father of a child:
- if he was married to the birth mother when the child was born or within 300 days of the child's birth,
- if he married the birth mother after the child's birth and acknowledged that he is the father of the child,
- if he lived with the birth mother in a "marriage-like relationship" within 300 days of the child's birth, or
- if he signed the child's record of live birth.
These legal presumptions are helpful, but none of them prove that a man is the biological father of a child. However, the court may order, under section 33 of the Family Law Act, that a person take a DNA test to establish the paternity of a child.
When one or two people need the help of others to have a child, some additional rules apply:
- one or two people who want to have the child, the intended parents, can be the parents of the child,
- the donor of sperm or an egg is not usually a parent of the child,
- a surrogate mother is usually a parent of the child, and
- the spouse of a surrogate mother is usually a parent of a child.
That's a lot of parents! A written agreement made before the child is conceived can say that a donor of sperm or eggs is a parent, that a surrogate mother is not a parent, and that the spouse of a surrogate mother is not a parent. These agreements can be really complicated, and it's a very good idea to hire a lawyer who often deals with assisted reproduction issues to prepare an assisted reproduction agreement.
Grandparents and extended family members
In addition to parents, other people can have a legal relationship with a child. Most of the time these people are extended family members who have had a parent-like relationship with a child, such as a grandparent, an aunt or an uncle, or even a much older sibling, but any adult who has had a parenting role in a child's life may have a legal relationship.
Caring for children
Where a child's parents are no longer in the picture or if the child's parents aren't doing a good enough job, an extended family member might apply for guardianship of the child under the Family Law Act. (Guardians have the right to care for and make decisions on behalf of a child.) Section 51(1)(a) of the act says that the court may appoint a person as the guardian of a child, and an extended family member is certainly "a person."
Under the Divorce Act, a court can make an order giving someone who "stands in the place of a parent or intends to stand in the place of a parent" something called decision-making responsibility, the right to make decisions on behalf of a child, but only if:
- the child's parents are married to each other and involved in a court proceeding under the Divorce Act, and
- they get the court's permission to apply for decision-making responsibility.
Spending time with children
If a child's parents are doing a good enough job, on the other hand, an extended family member might want contact with the child, especially if time with the child is being withheld. Section 59(2) of the Family Law Act says this:
A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.
Under the Divorce Act, a court can make an order giving someone who "stands in the place of a parent or intends to stand in the place of a parent" something called parenting time. Someone who does not stand in the place of a parent can ask for contact. In both cases, an extended family member can only ask for an order if:
- the child's parents are married to each other and involved in a court proceeding under the Divorce Act, and
- they get the court's permission to apply for parenting time or contact.
People in dating relationships
Family law doesn't have much at all to do with people who are dating and don't have a child. They're not "spouses" under the Family Law Act or the Divorce Act, they're not "parents" under the Family Law Act, and since they don't have a child, they're not "guardians" under the Family Law Act. The Divorce Act and the Family Law Act don't apply to them because their relationship isn't one of the relationships the acts talk about.
There are only a few ways the law can affect people in relationships like this. If there is violence or non-consensual sexual activity, the parts of the Criminal Code that talk about things like assault, battery, sexual assault, rape, stalking, unlawful confinement, and abduction might apply, and those are issues that the police will deal with. If they sign a lease together, buy something together or take out a loan together, then the law of contract or the law of property might be used to figure out who's entitled to what assets and responsible for which obligations. If they buy property together, the provincial Partition of Property Act will let them ask the court to sell the property and divvy up the proceeds. I suppose that if they split up and start bad-mouthing each other on social media, then tort law and the law about defamation might also be relevant.
Unless there is something like this going on, when people who are dating each other split up, that's it, their relationship is over without any legal entitlements at all.
Different relationships, different rights, different responsibilities
Married spouses and unmarried spouses
Married spouses and unmarried spouses who have lived together for at least two years have exactly the same rights in British Columbia under the provincial Family Law Act. People in both kinds of relationship may:
- be the guardians of any children they happen to have, and as guardians have parental responsibilities and parenting time with respect to those children,
- have contact with a child if they are not a guardian of that child,
- ask for, or be responsible to pay, child support,
- ask for, or be responsible to pay, spousal support,
- share in family property and any family debt, and
- apply for orders for the protection of people or the protection of property.
The only legal differences between married spouses and unmarried spouses who have lived together for at least two years are that:
- only married spouses must get a divorce to end their relationship with one another,
- only married spouses can ask the court for orders under the federal Divorce Act, and
- the time limit for married spouses to ask for spousal support or orders dividing property and debt under section 198 of the Family Law Act begins to run from the date they are divorced or the date their marriage is annulled.
And the only legal differences between unmarried spouses who have lived together for at least two years and unmarried spouses who have lived together for less than two years are that couples who have lived together for less than two years can't:
- share in family property and any family debt, and
- apply for orders for the protection of property.
People in both kinds of relationship may be the guardians of their children, and as guardians have parental responsibilities and parenting time with respect to those children, have contact with a child, ask for or be responsible to pay child support, ask for or be responsible to pay spousal support, and apply for orders for the protection of people. For unmarried spouses, the time limit to ask for spousal support under section 198 of the Family Law Act begins to run from the date they separated.
Although unmarried spouses who have lived together for less than two years are cut out of the part of the Family Law Act that deals with property and debt, they will still share in property they own jointly and they can still make claims to property owned only by one spouse under the law of trusts and the law of equity. These claims are discussed in the introductory part of the Property and Debt in Family Law Matters chapter.
People who are parents but aren't spouses
Although people who are not spouses can have all sorts of legal relationships with each other, from co-owning land to running a business together, from a family law perspective their most important relationship is as parents. People who are parents may:
- be the guardians of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
- have contact with a child if they are not a guardian of that child,
- ask for, or be responsible to pay, child support, and
- apply for orders for the protection of people.
Like unmarried spouses who have lived together for less than two years, people who are parents are entitled to share in property they own jointly and may make claims to property owned only by one spouse under the law of trusts and the law of equity.
Family law doesn't really deal with people who aren't spouses, aren't parents, and don't live together. The only claims people like this can make under the Family Law Act are for orders appointing them as the guardian of the other person's child or giving them contact with that person's child. They can't even apply for orders for the protection of people under the Family Law Act.
A few surprisingly common misunderstandings
People have a whole lot of bad ideas about what's involved in marriage, unmarried relationships, separation, and divorce, like the idea that a couple who've lived together for a long time are somehow automatically married. Some of these misunderstandings, I'm sure, come from television and movies. Others are just urban myths.
Marriage and getting married
It is not true that an unmarried couple is automatically "married" once they've lived together for a certain amount of time. An unmarried couple is never legally married unless they have actually had a marriage ceremony. We don't have "common-law marriages" anymore, and haven't for the last few hundred years.
You are not legally married unless you have a marriage ceremony and the ceremony is conducted by someone authorized by the provincial government to perform marriages. Your car mechanic can perform your marriage, if your car mechanic is a marriage commissioner, but your Wiccan high priestess cannot legally marry you unless she also happens to be a licensed marriage commissioner.
Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, as long as the marriages meet the criteria for valid marriages discussed in the next section. If you want to undo the marriage, you'll have to get divorced just like every other person in a valid marriage, and that will usually mean waiting until one year has passed since your separation. (An alcohol-induced Las Vegas marriage was upheld in the 2005 Supreme Court case of Davison v Sweeney, because the spouses knew what they were doing when they married, despite the fact that they had never had sex with each other and separated when their respective holidays ended, two days after they were married.)
Separation and the "legal separation"
There is no such thing as a "legal separation" in British Columbia anymore, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a marriage, you are separated the moment you decide that the relationship is over and you start acting like it's over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom: you're separated. Congratulations.
To be crystal clear:
- you do not need to "file for separation" to be separated; in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits,
- there are no court documents or other papers you have to sign to be separated, and
- you don't need to appear before a judge, a lawyer, a government official, or anyone else to be separated.
To be separated, you just need to decide that your relationship is over and say so, and then start acting like it's over.
The fact that a married couple is separated, however, isn't enough to let either of them remarry. You must be formally divorced by an order of the court in order to remarry. If you remarry without being divorced from the first marriage, the new marriage will be invalid and you may be guilty of bigamy.
On the other hand, the fact that you're separated won't stop you from having a new relationship, including a new relationship that would qualify as an unmarried spousal relationship. Technically, this is adultery, but no one except the Pope or your in-laws is likely to care. There's a lot more information about new relationships after separation in this chapter's section on Separation and the Law.
Divorce and getting divorced
As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced as long as your spouse is alive. You may have been separated for twenty years, but unless your spouse has died or a court has actually made an order for your divorce, you're still married. It'd be nice, and whole lot cheaper, if the passage of time provided an automatic divorce, but it just doesn't work that way.
It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the legal issues arising when a couple separates, like the dividing property or paying support, but they're not a requirement of the divorce process. You especially don’t need a separation agreement if there are no other legal issues — such as issues about parenting after separation, support or property — apart from getting divorced.
It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You don't need to get divorced, the sands of time have done that for you.
It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be annulled, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law, whether you and your spouse are having sex or not is irrelevant.
The one exception to this general rule has to do with the "consummation" of a marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must — I kid you not — have an "invincible repugnance" to the act of sexual intercourse or some other condition that makes sex impossible.
The automatic marriage
It is not true that an unmarried couple are automatically married once they've lived together for a certain amount of time, nor is there any such thing as a "common-law marriage." You can have lived together for twenty years and still not be legally married. An unmarried couple is never married unless there is an actual marriage ceremony performed by someone licensed to perform marriages.
Applying for spousal status
A couple becomes spouses when they qualify as "spouses" under whatever law applies; for most federal laws, the couple must have lived together for at least one year, and for most provincial laws the couple must have lived together for at least two years. There's no application to make and no one to apply to. It's all about whether you meet the applicable definition.
The accidental spouse
It is not true that you become an unmarried spouse just by living with someone for long enough. You must be living together in a "marriage-like relationship" to become unmarried spouses; mere roommates will not become spouses by accident. There wouldn't be any frat houses if this wasn't the case.
Likewise, a dating couple don't become spouses just because they have a child together. They must also be living together in a "marriage-like relationship."
Separation and the "legal separation"
There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in a unmarried relationship, a marriage, or you're just dating, you are separated the moment you decide that the relationship is over and you start acting like it's over. That's it, there's no magic to it. When you've split up, boom: you're separated.
Unmarried spouses do not need to be divorced. Once you've decided to separate, the relationship is over, regardless of how long the relationship may have been. There is no need to get a divorce order because there's no marriage that must be terminated.
- Introduction to Family Law from Dial-a-Law by the People's Law School
- Getting Married in British Columbia from Dial-a-Law by the People's Law School
- Marriage Registration and Certifications from BC Vital Statistics Agency
- Marriage Agreements and Cohabitation Agreements from Dial-a-Law by the People's Law School
- Common-law Couples from Legal Aid BC
- Thinking about Leaving? from Legal Aid BC
- Make a Separation Plan Pathway from My Law BC
- Legal Services Society's Family Law website's common questions on Separation & Divorce
- Parenting Apart from the BC Ministry of Attorney General
- Divorce Assistant from the Ministry of Justice
- "Starting Relationships" video from JP Boyd
- "Separation Agreements" from Legal Aid BC and West Coast LEAF
- Legal Services Society's Living Together or Living Apart
- "Coping with Separation Handbook" from Legal Aid BC
- "Coping with Separation During Covid-19 Handbook" from Legal Aid BC
- "Ending Relationships" vidoe from JP Boyd
- "Getting Divorced in British Columbia" video from JP Boyd
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 25, 2021.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|