Family Relationships: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = relationships}}
{{JP Boyd on Family Law TOC|expanded = relationships}}{{JPBOFL Editor Badge
|ChapterEditors = [[Stephen Wright]] and [[Michael Sinclair]]
}}
{{LSSbadge
| resourcetype = a publication on ''Family Law Act'' basics titled
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart]
}}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.


{{OKSUBSTANTIVE}}
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 Spouses and the Law on Marriage|married relationships]], [[Unmarried Spouses|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 [[Adoption|adopting children]] and provide more information about having children using [[Having Children with Assisted Reproduction|assisted reproduction]].


People in virtually any kind of relationship can find themselves having a problem involving family law. Some people are married, others have lived together long enough to qualify as spouses without being married, others are in shorter relationships, perhaps lasting for only one night, which produce children. 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
==Introduction==


This page talks about the different kinds of family relationships recognized by the ''[[Family Law Act]]'' and how the law impacts on people in these relationships, and discusses some urban myths about married and unmarried relationships. The other pages in this chapter will go into more detail about the legal rights and duties involved in married relationships, unmarried spousal relationships and other unmarried relationships.
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 ''[http://canlii.ca/t/7vf2 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.


==Introduction==
Family law in British Columbia deals with four kinds of family relationships:


Being in a family relationship can create legal obligations in addition to the moral and social obligations that we usually associate with a family relationship. 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 ''[http://canlii.ca/t/7vf2 Criminal Code]'', it has 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 triggered by different kinds of family relationships. Family law in British Columbia presently deals with four kinds of family relationship.
*'''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.


*'''Married spouses:''' People who are married spouses have been wed at a ceremony conducted by someone licenced 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.


*'''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 relationships of unmarried spouses end 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.


*'''Unmarried parents:''' Unmarried parents are people who have had a child together but never lived together. Unmarried parents might include people who have helped someone have a child through assisted reproduction, like 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. Unmarried parents also include people who were in a dating or casual relationship and have had a child.
*'''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.


*'''Children’s caregivers and extended family:''' Extended family members and other adults may have a parent-like relationship with a child who is not their biological child. This might include grandparents, aunts and uncles and other people who have had a significant role in raising a 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.


===Married spouses===
===Married spouses===


To be able to marry, the parties must be, among other things, unmarried, sane, sober and over a certain age. They must also be married by a person properly licenced to conduct marriages, either a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia is described in detail in the [[Married Spouses]] page of this chapter, which has more information about the law relating to marriage.
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.  


====Living together====
====Living together====


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 when a married couple began to live together if that date is earlier than the date of marriage.
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.


====Marriage====
====Marriage====


The law about marriage has changed enormously 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, one 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 law suit 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.
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 <span class="noglossary">account</span> 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.


The institution of marriage was once of such social significance that people could be sued for 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'').
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 sovereign rights over his wife and her property. Since 1978, married women have had exactly the same property rights that single women have, which are also happen to be the same property rights that their husbands have. A husband can no longer apply for credit in his wife's name or use her property as collateral for a loan without her express 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''.
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 ''[https://canlii.ca/t/52hdt Civil Marriage Act]''.


If there's a difference anymore between being in a married spousal relationship and being in an unmarried spousal relationship, that is a difference apart from the religious dimensions, it's probably that marriage often implies a greater sense of personal commitment to the relationship and a willingness to treat the relationship as a true partnership. Marriage suggests something more permanent than an unmarried relationship and signals a personal dedication to nurturing the relationship and a willingness to stick it out through the good times and the bad.
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.


At law, the most significant difference between married and unmarried spousal relationships is that only married spouses need a divorce or annulment to end their relationship.
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.


====Annulment====
====Annulment====


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 an application for a declaration that the marriage is void. A marriage may be annulled if:
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 twelve or a male spouse was under the age of fourteen (the common law ages of puberty),
*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,
*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,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
Line 50: Line 56:
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.


More information about void marriages, voidable marriages and annulment is available in the section on [[Married Spouses]] .
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====
====Separation====


Separation is simple: the parties must 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. You just need to call it quits and tell your spouse that it's over.
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 <span class="noglossary">opinion</span>, 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.


For married spouses, separation may signal the breakdown of their emotional relationship but doesn't end their legal relationship. To do this, one or both spouses must apply to court for a divorce.
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====
====Divorce====


Divorce is the legal termination of a valid marriage. To obtain a divorce, one or both spouses must begin a court proceeding asking for a divorce order, and at least one of the spouses must have been ''ordinarily resident'' in British Columbia for the year before starting the court proceedings.  
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 &mdash; they must have been ''habitually resident'' in the province &mdash; for at least one year before the court proceedings start.  


The court will make a divorce order if the married relationship has broken down. Under the federal ''[[Divorce Act]]'', there are three ways to prove marriage breakdown:
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,
#the spouses have been separated for at least one year,
#one of the spouses committed adultery, or
#one of the spouses committed adultery, or
#one of the spouses treated the other spouse with such mental or physical cruelty that the relationship cannot continue.
#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 raised by the other spouse.
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.


===Unmarried spouses===
===Unmarried spouses===


Section 3(1) of the provincial ''Family Law Act'' defines ''spouse'' as including married spouses as well as:
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.


#people who have lived in a "marriage-like relationship" for at least two years, and
That's why this resource talks about "married spouses" and "unmarried spouses."  
#people who have lived in a "marriage-like relationship" for less than two years and have had a child together.


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. Unmarried spouses who have 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 the child support obligations of stepparents.
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:


The federal ''Divorce Act'' doesn't apply to any unmarried relationship, whether the parties are spouses under provincial law or not.
::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Have lived together for at least two years
!style="width: 20%" align="center"|Have lived together for less than two years<br/>but have a child together
|-
|align="center"|'''Guardianship and<br/>parenting children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Spousal support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and<br/>family debt'''||align="center"|Yes||
|}
 
The federal ''[[Divorce Act]]'' doesn't apply to people in unmarried relationships, whether they're "spouses" under provincial law or not.


====Living together====
====Living together====


The relationship between unmarried spouses begins on the date they begin 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 romantic, committed relationship.
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" in nature.
The section on [[Unmarried Spouses]] talks about when a relationship becomes "marriage-like."


====Separation====
====Separation====


Unmarried spouses are separated when they begin to live "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. You just need to call it quits and tell your spouse that it's over.
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.
 
===Parents===
 
You are a parent if you have a child, including by adoption and, in some circumstances, by assisted reproduction.
 
====Natural 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:


For unmarried spouses, separation is the end of their emotional and legal relationship with each other. Unmarried spouses do not need to get divorced.
*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.


===Other unmarried relationships===
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.


The other group of people the ''Family Law Act'' talks about is ''parents'', and this group is broader than a lot of people might think. Family law doesn't have much to do with people who are just dating and don't have a child together.
====Assisted reproduction====


====Parents through natural reproduction====
When one or two people need the help of others to have a child, some additional rules apply:


Under s. 26, a child's parents are presumed to be the child's ''birth mother'' and ''biological father''. This includes ''everyone'' who is a mother or a father, regardless of the nature of the parents' relationship with each other. They could be married spouses or unmarried spouses, dating each other or not dating at all.
*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.


====Parents through assisted reproduction====
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.


When one or two people need the help of others to have a child, some additional rules apply:
===Grandparents and extended family members===


*the one or two people who want to have the child, the ''intended parents'', are parents,
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.  
*the donor of sperm or an egg ''is not a parent'', unless everyone has signed an assisted reproduction that makes the donor a parent, and
*a surrogate mother ''is a parent'', unless everyone has signed an assisted reproduction that makes her not a parent.


If you do the math, you'll see that under the ''Family Law Act'' a child can have up to five parents, and the act doesn't discriminate between parents who are intended parents and parents who are donors or surrogate mothers. In for a penny in for a pound, as the saying goes; a parent under an assisted reproduction agreement is liable to pay child support just like every other parent, but is also presumed to be the guardian of a child under s. 39(3).
====Caring for children====


===Caregivers and extended family relationships===
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."


Other people can have a legal interest in a child in addition to people who are parents. 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 an interest in a child.
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:


This kind of legal interest plays out in one of two ways. Where a child's parents are doing a good enough job, an extended family member might want ''contact'' with the child if time with the child is being withheld. Section 59(2) of the ''Family Law Act'' says this:
*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:


<blockquote><tt>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.</tt></blockquote>
<blockquote><tt>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.</tt></blockquote>


Where a child's guardians are no longer in the picture or if there's a concern about the child's welfare with his or her guardians, an extended family member might also apply for ''guardianship'' of the child. Section 51(1)(a) merely says that the court may appoint "a person" as a child's guardian, 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 ''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 ''[http://canlii.ca/t/7vf2 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 ''[http://canlii.ca/t/848q 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 rights and responsibilities==
==Different relationships, different rights, different responsibilities==


===Married spouses and unmarried spouses===
===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''. Both may:
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,
*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 happen not to be guardians,
*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, ''child support'',
*ask for or be responsible to pay ''spousal support'',  
*ask for, or be responsible to pay, ''spousal support'',
*share in ''family property'' and any ''family debt'', and
*share in ''family property'' and any ''family debt'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.
*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 and only married spouses can ask the court for orders under the federal ''Divorce Act''. That's it.
The only legal differences between married spouses and unmarried spouses who have lived together for at least two years are that:


The only legal difference between unmarried spouses who have lived together for at least two years and unmarried spouses who have lived together for less than two years is that couples who have lived together for less than two years aren't able to share in family property and family debt under the ''Family Law Act''. They may:
*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.


*be the ''guardians'' of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
That's it.
*have ''contact'' with a child if they happen not to be guardians,
*ask for or be responsible to pay ''child support'',
*ask for or be responsible to pay ''spousal support'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.


Although unmarried spouses who have lived together for less than two years are cut out of the part of the act that deals with property and debt, they still share in property they jointly own and they can make claims to property owned only by one spouse under the law of trusts and the law of equity.
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:


===Other unmarried relationships===
*share in ''family property'' and any ''family debt'', and
*apply for orders for the ''protection of property''.


Although people who are not spouses can have all sorts of legal relationships with each other, from co-owning land or running a business together, from a family law perspective, in general their most important relationship is as parents. Parents may:
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.


*be the ''guardians'' of their children, and as guardians have parental responsibilities and parenting time with respect to those children,
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.
*have ''contact'' with a child,
*ask for or be responsible to pay ''child support'', and
*apply for ''protection orders'' if they feel they are at risk of family violence.


Like unmarried spouses who have lived together for less than two years, couples who are not spouses still share in property they jointly own and they can make claims to property owned only by one spouse under the law of trusts and the law of equity.
===People who are parents but aren't spouses===


Couples who are not spouses, not parents and do not live together cannot apply for protection orders.
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:


===Children's caregivers and extended family===
*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''.


Adults with an interest in a child who is not theirs may
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.


*ask to be appointed as the ''guardian'' of a child, and as a guardian have parental responsibilities and parenting time with respect to that child,
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''.
*have ''contact'' with a child, and
*ask for ''child support''.


==A few surprisingly common misunderstandings==
==A few surprisingly common misunderstandings==


A lot of people seem to labour under certain misconceptions about what marriage, unmarried relationships, separation and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies. Others are urban myths that get spread during a few pints at the pub.
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.


===Married relationships===
===Married spouses===


====Marriage and getting married====
====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. A unmarried couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage."
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 marry you, if your car mechanic is a marriage commissioner, but your Wiccan high priestess cannot legally marry you unless she also happens to be a licenced marriage commissioner.
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 page. If you want to undo the marriage, you'll have to get divorced just like every other 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 very funny 2005 Supreme Court case of ''[http://canlii.ca/t/1q47l Davison v. Sweeney]'', 2005 BCSC 757, simply because the spouses knew what they were doing when they married, despite the fact that they had never had sex and separated two days after the marriage, when their respective holidays ended.
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 ''[http://canlii.ca/t/1q47l 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"====
====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 an unmarried relationship or a marriage, you are separated the moment you decide that the relationship is 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.
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:
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,
*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 or other papers you have to sign to be separated, and
*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, lawyer, shaman or anyone else to be separated.
*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.
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 couple is separated isn't enough to let a separated spouse 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.
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 which would qualify as a spousal relationship. Technically, this is adultery, but no one except the Pope or your in-laws are likely to care.
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====
====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. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.
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 issues arising when a couple separates, like the division of property or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.
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 &mdash; such as issues about parenting after separation, support or property &mdash; 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 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 declared void, 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.
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 last rule has to do with the "consummation" of the 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 physical condition which makes sex impossible.
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 &mdash; I kid you not &mdash; have an "invincible repugnance" to the act of sexual intercourse or some other condition that makes sex impossible.


===Unmarried spousal relationships===
===Unmarried spouses===


====The automatic marriage====
====The automatic marriage====


It is not true that a 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 licenced to perform marriages.
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====
====Applying for spousal status====


A couple become spouses when they qualify as a "spouse" 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 meeting the definition of "spouse."
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====
====The accidental spouse====


It is not true that you become unmarried spouses simply 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.
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 <span class="noglossary">case</span>.


Likewise, a dating couple won't become spouses if they have a child. They must also be living together in a "marriage-like relationship".
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"====
====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. That's it, there's no magic to it. When you or your partner leaves, boom, you're separated.  
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.


====Getting divorced====
====Getting divorced====


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 because there's no marriage to terminate.
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.


==Further Reading in this Chapter==
==Resources and links==


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
===Legislation===


==Page Resources and Links==
*''[https://canlii.ca/t/8q3k Family Law Act]''
*''[https://canlii.ca/t/551f9 Divorce Act]''
*''[https://canlii.ca/t/52hdt  Civil Marriage Act]''
*''[http://canlii.ca/t/846b Marriage Act]''
*''[https://canlii.ca/t/5533n Criminal Code]''
*''[https://canlii.ca/t/lcb8 Partition of Property Act]''


===Legislation===
===Links===


* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* [https://dialalaw.peopleslawschool.ca/introduction-to-family-law/ Introduction to Family Law] from Dial-a-Law by the People's Law School
FLA, DA, Civil Marriage Act, Marriage Act,
* [https://dialalaw.peopleslawschool.ca/getting-married/ Getting Married in British Columbia] from Dial-a-Law by the People's Law School
* [https://www2.gov.bc.ca/gov/content/life-events/marriage/marriage-registration Marriage Registration] from BC Vital Statistics Agency
* [https://dialalaw.peopleslawschool.ca/marriage-agreements/ Marriage Agreements and Cohabitation Agreements] from Dial-a-Law by the People's Law School
* [https://family.legalaid.bc.ca/separation-divorce/common-law Common-law Couples] from Legal Aid BC
* [https://family.legalaid.bc.ca/separation-divorce/going-through-separation Going Through Separation] from Legal Aid BC
* [https://www.howtoseparate.ca/ How to Separate] online course from Justice Education Society
* [https://family.legalaid.bc.ca/separation-divorce Legal Services Society's Family Law website's common questions on Separation & Divorce]
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/family-law/parenting-apart Parenting Apart] from the BC Ministry of Attorney General
* [https://justice.gov.bc.ca/divorce Divorce Assistant] from the Ministry of Justice


===Links===
===Resources===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
*[https://bit.ly/4ftjDLM "Starting Relationships" video] from JP Boyd
*[https://westcoastleaf.org/work/separation-agreements/ "Separation Agreements: Your Rights and Options"] from Legal Aid BC and West Coast LEAF
*[https://legalaid.bc.ca/publications/pub/living-together-or-living-apart ''Living Together or Living Apart''] from Legal Aid BC
*[https://legalaid.bc.ca/publications/pub/coping-separation-handbook "Coping with Separation Handbook"] from Legal Aid BC
*[https://bit.ly/3AoGrfy "Ending Relationships" video] from JP Boyd
*[https://bit.ly/4fCuqTT "Getting Divorced in British Columbia" video] from JP Boyd


{{REVIEWED | reviewer = [[JP Boyd]], March 25, 2023}}


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[[Category:Marriage, Separation & Divorce]]
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[[Category:JP Boyd on Family Law]]

Latest revision as of 19:50, 7 August 2024

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.

Introduction

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.

Married spouses

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.

Living together

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.

Marriage

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.

Annulment

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

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

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:

  1. the spouses have been separated for at least one year,
  2. one of the spouses committed adultery, or
  3. 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.

Unmarried spouses

Section 3(1) of the provincial Family Law Act defines spouse as including people who married each other as well as:

  1. people who have lived together in a marriage-like relationship for at least two years and,
  2. 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
Guardianship and
parenting children
Yes Yes
Time with children Yes Yes
Child support Yes Yes
Spousal support Yes Yes
Family property and
family debt
Yes

The federal Divorce Act doesn't apply to people in unmarried relationships, whether they're "spouses" under provincial law or not.

Living together

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."

Separation

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.

Parents

You are a parent if you have a child, including by adoption and, in some circumstances, by assisted reproduction.

Natural 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.

Assisted reproduction

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.

That's it.

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.

Married spouses

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.

Unmarried spouses

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.

Getting divorced

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.

Resources and links

Legislation

Links

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 25, 2023.


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.