Unmarried Spouses

The provincial Family Law Act defines "spouse" as including both married people and unmarried people. To qualify as "spouses" under the act, unmarried people must have lived together in a "marriage-like relationship" for at least two years, or for less than two years if they have had a child together. Because the federal Divorce Act only applies to married spouses, all of the rules that apply to unmarried relationships are in the Family Law Act.

This section talks about how people qualify as unmarried spouses, the consequences of being in — and leaving — a spousal relationship, and unmarried spouses' entitlement to government benefits. This section also talks about the legal issues involved when a relationship breaks down. The next section in this chapter talks about people who are parents but not spouses.

Introduction

The rights and responsibilities of people in unmarried relationships, and the government benefits to which they might be entitled, are described in a number of different laws. These rights, responsibilities and benefits don't apply to everyone in an unmarried relationship. To figure out whether they apply to you and your relationship, you need to look at the law and how it describes the people to which it applies.

For example, family law in British Columbia generally applies to people who are spouses, parents and guardians, and the Family Law Act has definitions of the terms "spouse," "parent" and "guardian." You won't have any of the rights and responsibilities that guardians have, for example, unless you meet the act's definition of "guardian."

The Canada Pension Plan, on the other hand, applies to people who are spouses or common-law partners, while Alberta's Family Property Act applies to people who are spouses or adult interdependent partners, and the Family Law Act of Newfoundland and Labrador applies to people who are spouses, partners and parents. Each law defines what it means by these terms. Under section 2(1) of the Canada Pension Plan, for example, a "common-law partner" is:

a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year.

Section 1 of Alberta's Family Property Act says that an "adult interdependent partner" is someone who is "an adult interdependent partner within the meaning of the Adult Interdependent Relationships Act," which means that you now have to hunt down the Alberta Adult Interdependent Relationships Act. When you do that, you'll find that section 3 of the Adult Interdependent Relationships Act says:

(1) Subject to subsection (2), a person is the adult interdependent partner of another person if

(a) the person has lived with the other person in a relationship of interdependence

(i) for a continuous period of not less than 3 years, or

(ii) of some permanence, if there is a child of the relationship by birth or adoption,

or

(b) the person has entered into an adult interdependent partner agreement with the other person under section 7.

(2) Persons who are related to each other by blood or adoption may only become adult interdependent partners of each other by entering into an adult interdependent partner agreement under section 7.

So, to qualify as a "common-law partner" under the Canada Pension Plan, you have to:

• have lived with someone else...
• ...in "a conjugal relationship"...
• ...for at least one year...
• ...at "the relevant time."

To qualify as an an "adult interdependent partner" under Alberta's Family Property Act, on the other hand, you have to:

• have lived with someone else...
• ...in a "relationship of interdependence"...
• ...for at least three years,

or you have to:

• have lived with someone else...
• ...in a "relationship of some permanence" and...
• ...have had a child together,

or you have to:

• have signed an adult interdependent partner agreement with someone else.

As a result of these definitions, and how they change depending on the legislation you're looking at, people might qualify as "common-law partners" under the Canada Pension Plan but not as "spouses" under British Columbia's Family Law Act, or they might qualify as "partners" under the Family Law Act of Newfoundland and Labrador but not as "adult interdependent partners" under Alberta's Family Property Act.

I know that this is more than a little confusing, but what it boils down to is the question "Do I qualify as ______ for the purposes of ______ legislation?," and to answer that question you usually have to read that legislation very carefully.

Provincial legislation

For most provincial laws, the question is whether or not a particular couple are "spouses." Qualifying as a spouse might mean that you're entitled to the family rate for MSP, that you can share in your spouse's estate if your spouse dies, or that you're no longer entitled to social assistance under the Employment and Assistance Act. It also might mean that you're entitled to ask for spousal support or the division of property under the Family Law Act if your relationship ends.

In general, for most but not all provincial laws, you must have lived with your partner for at least two years to qualify as a spouse. Here's the definition of "spouse" from section 2(1) of the provincial Wills, Estates and Succession Act:

... 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship for at least 2 years.

And here's the definition from section 3 of the provincial Family Law Act:

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 and 6, has a child with the other person.

(2) A spouse includes a former spouse.

Here's the definition from section 1 of the provincial Adult Guardianship Act:

"spouse" means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living with another person in a marriage-like relationship;

As you can see, there are subtle differences between these definitions, but lots of similarities as well. For people who aren't married to each other, the common thread involved in being a "spouse" under the legislation of British Columbia is the idea of living together in a "marriage-like relationship."

Federal legislation

Most federal laws distinguish between "spouses," people who are legally married, and "common-law partners," who aren't. Qualifying as a common-law partner might mean that you are entitled to a share of your partner's CPP credits, receive the Old Age Security spouse allowance or survivor's benefits, or the spouse amount for the GST Credit.

In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from section 2 of the Old Age Security Act:

"common-law partner", in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year.

Here's the definition from section 248 of the Income Tax Act:

"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and

(a) has so cohabited throughout the 12-month period that ends at that time, or

(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),

and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of least 90 days that includes the particular time because of a breakdown of their conjugal relationship.

"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship."

"Common-law spouses"

Family law in British Columbia doesn't talk about people who are "common-law spouses" and never has. Once upon a time, people could marry each other and create a legal relationship simply by agreeing to marry, without getting a licence from the government, the publishing of banns by the church, or having a particular kind of ceremony. Because the rights between the spouses came from principles established by the common law, these became known as common-law marriages. Common-law marriages were valid in England until the Marriage Act of 1753, better known by its full flowery name, An Act for the Better Preventing of Clandestine Marriage.

Normally I wouldn't make a fuss about terminology like this, except that the phrase "common-law spouses" kind of suggests that there are certain rights and entitlements that a couple get from the operation of the common law, and this really isn't the case and it hasn't been the case for two-and-a-half centuries. What's really important is whether people qualify as "spouses" — or as "common-law partners" or "adult interdependent partners" or whatever — under the particular law that they're looking at.

There is no such thing as a "common-law spouse" or a "common-law marriage" in British Columbia. If you're not married but you're a "spouse," it's because of section 3 of the Family Law Act. Marriage and the legal requirements of marriage are discussed in the Married Spouses and the Law on Marriage section of this chapter.

Qualifying as an unmarried spouse

It's usually pretty hard to argue that you're not married if you're a married spouse. You had a ceremony in front of a bunch of people, including at least two witnesses as required by section 9 of the provincial Marriage Act, and exchanged vows and rings. Even if you've lost your ring and hidden your marriage certificate, those witnesses will still be around to talk about your wedding.

It's a lot easier for unmarried spouses to argue about the status of their relationship, and the stakes can be quite high. If a couple were just roommates, for example, neither of them will be able to ask for a share of the family property or for a contribution to the family debt, and neither will be able to ask the other to pay spousal support.

The definition of "spouse" from section 3 of the Family Law Act is reprinted above, under the heading "Provincial legislation." It requires that unmarried people have lived together in a marriage-like relationship for at least two years, or for less than two years if they've had a child together. Let's break this down a bit.

"Living together..."

"Living together" means, well, living together or cohabiting. (The thing that separates relatives and roommates from spouses is the "marriage-like relationship" requirement, and we'll talk about this next.) There are two aspects of "living together" that may not be obvious.

First, the two-year period doesn't need to be continuous. Going out of town for work for three months, for example, won't be considered to have interrupted the two-year period unless one or more of you thought your relationship was over while you were out of town. Neither will the two-year period be interrupted because you went on separate holidays or left to visit your parents for a few days.

Second, living together doesn't necessarily mean living together all the time. Some people try to avoid their relationships qualifying as "spousal" by making sure that they don't spend more than three days out of every seven together, by rotating weeks between living in a shared home and living in a separate home, or trying to figure out some other way of splitting time. You cannot count on this sort of cleverness to save you from being found to have been "living together," especially if the court sees you as trying to duck your responsibility to another person.

"...In a marriage-like relationship"

This is a more difficult question, because we're talking about people's intentions and beliefs, not where they keep their socks and underwear, and how those intentions and beliefs separate a relationship between mere roommates and people who are in a romantic relationship with each other. Although it can be hard to tell what people honestly think and believe, this question comes up often enough that there are some really good cases that talk about what a "marriage-like relationship" involves.

In a 1998 case called Takacs v Gallo, our Court of Appeal said that you can sometimes tell whether a relationship is marriage-like or not by looking at these factors:

• Shelter:

Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation?

• Sexual and personal behaviour:

Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings towards each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?

• Household chores:

What was the conduct and habit of the parties in relation to the preparation of meals, washing and mending clothes, shopping, household maintenance, and other domestic services?

• Social:

Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties? What was the attitude and conduct of the community toward each of them and as a couple?

• Economic support:

What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them that both agreed would be a determinant of their overall relationship?

• Children:

What was the attitude and conduct of the parties concerning children?

In a nutshell, where people don't agree whether their relationship is "marriage-like," the court will look at how the people involved in the relationship presented themselves to their family and friends, how they ran their household and how they arranged their finances. Did they present themselves as a family unit? Did they conduct their personal affairs as a family unit? Did they have shared bank accounts? Did they go to parties together? Were they sexually exclusive? Did they have or plan on having children?

The judge in a 2003 case from the Saskatchewan Court of Queen's Bench, Yakiwchuk v Oaks, talked about the difficulty of determining what is and what is not a "marriage-like" relationship by looking at how varied marriages themselves can be:

"Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property — in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important — for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their 'spouse' by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some 'spouses' do everything together — others do nothing together. Some 'spouses' vacation together and some spend their holidays apart. Some 'spouses' have children — others do not. It is this variation in the way human beings structure their relationships that make the determination of when a 'spousal relationship' exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist."

The point, I think, is that marriage-like relationships don't come in a single flavour. They are as varied and diverse as marriages are, and deciding whether a particular relationship is "marriage-like" requires a close look at the circumstances of the relationship and an assessment of its overall character.

Time limits

One thing that's really different between married relationships and unmarried relationships is that married relationships don't end without a divorce order, no matter how long the spouses have been separated from each other. Unmarried relationships end when people separate, and that can be critically important for people thinking about making claims for spousal support or the division of property and debt. Section 198 of the Family Law Act says this:

(1) Subject to this Act, a proceeding under this Act may be started at any time.

(2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,

(a) in the case of spouses who were married, the date

(i) a judgment granting a divorce of the spouses is made, or

(ii) an order is made declaring the marriage of the spouses to be a nullity, or

(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

(3) Despite subsection (2), a spouse may make an application for an order to set aside or replace with an order made under Part 5, 6 or 7, as applicable, all or part of an agreement respecting property or spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

(4) The time limits set out in subsection (2) do not apply to a review under section 168 [review of spousal support] or 169 [review of spousal support if pension benefits].

(5) The running of the time limits set out in subsection (2) is suspended during any period in which persons are engaged in

(a) family dispute resolution with a family dispute resolution professional, or

(b) a prescribed process.

The effect of time limits

All of that boils down to this. If you were an unmarried spouse (according to the Family Law Act), you have two years from the date you separated to:

1. make a claim for spousal support (that's the reference to Part 7 in section 198(3) above),
2. make a claim for the division of property, including pensions, and debt (that's the reference to Parts 5 and 6), and
3. ask for an order for the protection of property (which are made under Part 5).

(There are no time limits for claims about parenting children and the payment of child support in section 198. However, for claims about parenting, the child must be under the age of 19, and for claims about child support, the child must still be qualified to benefit from the payment support. See the Child Support chapter for more information.)

The date of separation is the date when one or both spouses realize that their relationship is over, says so, and ends the "marriage-like" quality of the relationship. As a result, the "marriage-like" quality of a relationship can terminate before a couple physically separates, and the time limits will usually begin to run from that date rather than the date someone moves out.

Delaying the time limits

The two-year time limit is suspended — it stops running — while you are working with a qualified "family dispute resolution professional" in one of the "family dispute resolution" processes the Family Law Act names. Under section 1 of the act, "family dispute resolution professional" includes:

• family justice counsellors,
• parenting coordinators,
• lawyers,
• mediators mediating a family law dispute, and
• arbitrators arbitrating a family law dispute.

Under the same section, "family dispute resolution" processes include:

• getting help from a family justice counsellor,
• getting help from a parenting coordinator,
• mediation,
• arbitration, and
• collaborative negotiation.

There are three things to know about the suspension of time limits under section 198(5). First, the court won't let you get away with starting mediation, for example, and then walking away from the table for a couple of months or a couple of years. You can do that if you want, of course, but it's not going to suspend the running of the two-year time limit. You need to be actively participating in one of the identified family dispute resolution processes if you're going to count on the time limit being suspended.

Second, the "family dispute resolution professional" you're working with needs to be a qualified family dispute resolution professional. If your family dispute resolution professional doesn't meet the requirements, the time limit won't be suspended. Those requirements are set out in sections 4, 5 and 6 of the Family Law Act Regulation. It is really important that you ask the family dispute resolution professional you are working with whether they meet the requirements of the Family Law Act Regulation! However, if your family dispute resolution professional is a lawyer, you can easily check their status through the Law Society of British Columbia's lawyer directory. The lawyer directory shows you all kinds of information about a lawyer, including their discipline history as well as whether they are qualified as an arbitrator, mediator or parenting coordinator. Here's the entry for me in the directory:

Example of a lawyer's entry in the Law Society of British Columbia's Lawyer Director

Example of a lawyer's entry in the Law Society of British Columbia's Lawyer Director

Third, the Family Law Act Regulation says that a process of mediation or arbitration requires the execution of a mediation agreement or an arbitration agreement to count as mediation or arbitration under section 1 of the Family Law Act. You have to have a signed agreement for the time limit to be suspended.

The rights and responsibilities of unmarried spouses

Section 215(1) of the federal Criminal Code requires each person to provide their "common-law partner" with the "necessaries of life." Apart from this one provision of the criminal law, there is no legislation that defines the duties unmarried spouses owe to each other during their relationship.

When unmarried spouses separate, however, each of them has certain entitlements under the provincial Family Law Act. A separated person who has lived with their unmarried spouse for at least two years can ask for:

• parental responsibilities for, and parenting time with, the children,
• child support for any children born during the relationship, and for any stepchildren brought into the relationship,
• spousal support,
• the division of the family property and any family debt,
• an order protecting persons, and
• an order protecting property.

A separated person who has lived with their unmarried spouse for less than two years can ask for:

• parental responsibilities for, and parenting time with, the children,
• child support for any children born during the relationship, and for any stepchildren brought into the relationship,
• spousal support, and
• an order protecting persons.

All these issues can be resolved by the spouses' agreement rather than be argued about in court.

Government benefits

The fact that a couple live together may entitle one or both of them to benefits from the federal or provincial government as long as they qualify as spouses or common-law partners under the the legislation and rules governing those benefits. It can also expose spouses to losing certain benefits, most importantly social assistance benefits.

Social assistance

The ministry that administers the Employment and Assistance Act and is responsible for social assistance often treats people living together as a couple as being in a spousal relationship, whether they are or aren't in that kind of relationship. This may decrease, and sometimes terminate, your entitlement to benefits under what's known as the "spouse in the house" rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually revert to treating you as single.

Employment Insurance

EI applies the same standards to unmarried spouses as it does to married spouses.

Canada Pension Plan

Unmarried spouses may share in each other's accumulated CPP credits, however this sharing is not automatic. You have to apply to equalize your CPP credits and your spouse's CPP credits. This application must be made within 48 months of the date of separation unless both parties agree in writing to waive the 48-month time limit.

Unmarried spouses may also share any CPP pension benefits that are currently being paid out. (There may be good income tax consequences if doing this reduces your taxable income.) You should be eligible to share your pension payments if you have been living together for at least one year and you are both at least 60 years old.

Old Age Security Pension

The Old Age Security Pension is available to people who are at least 65 years old. You may be entitled to receive the amount for a couple, rather than the amount for two single people, as well as other benefits like the spouse allowance and survivor's benefits, if you have been living together for at least one year.

MSP rates, and medical and dental benefits

The Medical Services Plan will cover your partner on your plan without any minimum limit on the length of time you've been living together, although you must have signed your partner up on the plan and must agree to pay the family rate rather than the rate for single adults.

If you or your partner receive any workplace medical or dental insurance coverage, check with the plan administrator to see if unmarried spouses are eligible beneficiaries under your plan. Most of the time they are.

ICBC death benefits

A surviving unmarried spouse can apply to receive death benefits from ICBC when the other spouse is killed in a car accident, regardless of whose fault the accident was.

Resources and links

Legislation

• Family Law Act
• Family Law Act Regulation
• Divorce Act
• Income Tax Act
• Wills, Estates and Succession Act
• Adult Guardianship Act
• Old Age Security Act
• Employment and Assistance Act
• Canada Pension Plan

Links

• Legal Services Society's Family Law website's common questions on Finances & Support
  • See "How is property divided when a common-law relationship ends?" under the heading "Common questions"
• Canada Pension Plan Survivor's Pension
• Legal Services Society's Family Law website's information page "Going through separation"
  • See "Proving you're separated if you and your spouse still live together"
• When Your Common-Law Spouse Dies from Dial-a-Law by the People's Law School
• Marriage Agreements and Cohabitation Agreements from Dial-a-Law by the People's Law School

Resources

• "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce" from Legal Aid BC

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.