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Difference between revisions of "Couples Who Are Not Spouses: Your Income, Support and Property Rights"

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
This script explains your income, financial support and property rights when you are in or have left a relationship that is not a spousal relationship. Topics covered include:
Not all couples who live together meet the definition of “spouse” under BC’s family law. For these couples, learn your entitlement to benefits and what happens if you split up.


*your rights to social assistance, pension plan benefits, employment insurance benefits, medical and dental coverage, and coverage under ICBC insurance programs;
==Understand your legal rights==
*responsibility for debts;
*your right to financial support if you separate;
*what happens to the property you acquire during your relationship; and
*why you should have a will.


==Who is a “spouse”?==
===The law defines who is a “spouse”===
Under the provincial ''Family Law Act'', “spouse” includes people who are married to each other as well as:
BC’s ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth Family Law Act]'' defines the term “'''spouse'''” as including married spouses 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 at least two years, and
*for some parts of the act, people who have lived together in a marriage-like relationship for less than two years if they have had a child together.
*people who have lived together in a marriage-like relationship for less than two years and have had a child together (in this case, you aren’t considered a spouse when it comes to property, debt or pensions; we explain what this means shortly).  


This script is for people who are not legally married and have not lived together in a marriage-like relationship for more than two years.
A couple is seen as living in a “'''marriage-like relationship'''” if they present themselves as a family unit to family and friends, and conduct their financial and household affairs as a couple.  


==Can you get income assistance while living in an unmarried relationship?==
This information is for couples who are '''not spouses''' under BC’s family law. For example, you may have lived together in a marriage-like relationship for less than two years (and not had a child together).
The welfare office may treat you like spouses as soon as you start to live together, whether you are spouses or not. When you apply for welfare, your caseworker will look at the income and assets for both of you. If you get income assistance, you’ll get it at the rate for a couple or family, and not as two single people. If you’re under 19, you may be refused welfare, but you can appeal this decision. Information about income assistance appeals can be found in script [[Income Assistance: Reconsiderations and Appeals (Script 288)|288]].


It’s important to know that if you claim welfare as a single person when you’re actually living with someone else as a couple, you may be required to repay any benefits you have received if your relationship is discovered. You may also face a civil court case or even criminal charges, and you could be refused future services by the Ministry.
===Getting income assistance===
The BC government provides '''welfare benefits''' such as income assistance to those in financial need.


==What about getting benefits under a pension plan?==
As soon as you start to live together with someone else, the welfare office may treat you like spouses. When you apply for welfare, your caseworker will look at the income and assets for both of you. Under BC’s [https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-40/latest/sbc-2002-c-40.html#sec1.1_smooth welfare law], "spouse" includes people living together for '''three months''' if the welfare caseworker believes their relationship demonstrates "financial dependence or interdependence, and social and familial interdependence, consistent with a marriage-like relationship”.
Pension benefits under Canada’s Old Age Security program are paid to Canadian residents over the age of 65. A Spouse’s Allowance is also paid to the spouses of pensioners for spouses between the ages of 60 and 65. To qualify for the Spouse’s Allowance as a spouse, you only need to be living together for one year. For more information on Old Age Security benefits, refer to script [[Senior Law and Elder Abuse (Script 239)|239]] on “Senior Law and Elder Abuse”.
 
If you fall within this definition and you qualify for income assistance, you would get it at the rate for a couple or family, and not as two single people.
 
You have the right to challenge the welfare office’s decision. For step-by-step guidance, see our information on [[Income Assistance: Reconsiderations and Appeals (Script 288)|income assistance reconsiderations and appeals (no. 288)]].
 
If you claim welfare as a single person when you’re actually living with someone else as a couple, and your relationship is discovered, you may be required to repay any benefits you have received. You may also face a civil court case or even criminal charges, and you could be refused future services by the welfare Ministry.
 
==Getting benefits under a pension plan==
'''Old Age Security''' provides Canadian residents with a monthly pension beginning at age 65. People between age 60 and 64 whose spouse qualifies for a low income pension supplement can receive an “'''allowance'''” benefit. To qualify for the allowance as a spouse, you need to be living together for '''one year'''.
For more information on Old Age Security benefits, see our information on [[Senior Law and Elder Abuse (Script 239)|the laws affecting older adults (no. 239)]].


Private pension plans generally do not provide benefits for people who are not spouses.
Private pension plans generally do not provide benefits for people who are not spouses.


==Can you get Employment Insurance benefits?==
==Getting Employment Insurance benefits==
Employment Insurance will treat you as if you are spouses if you and your partner have lived together for at least 12 months or are living together and expecting a child together.
The federal government provides '''Employment Insurance benefits''' to workers who lose their job. You may be eligible for EI benefits if you leave a job to accompany your partner to another place of residence. Employment Insurance defines a couple as spouses if they have lived together in a “conjugal relationship” for at least '''one year'''.
 
You can also get EI benefits if you leave your job to follow your partner if you are expecting the birth of a child or caring for an immediate family member.


If your partner moves to another city or province, you can quit your job to go with him or her, you may still have the right to get Employment Insurance benefits. Note, however, that you can be denied benefits if there’s no work at all for you in the new town.
Note you won’t qualify for benefits if Employment Insurance concludes you had reasonable alternatives to keep your job, such as requesting a transfer or commuting from the new place of residence.


==Are you covered under your partner’s medical and dental plans?==
===Coverage under your partner’s medical and dental plans===
The BC Medical Service Plan covers people who live together. There’s no requirement about how long you must have been living together.
The BC Medical Service Plan covers people who live together. There’s no requirement about how long you must have been living together.


Medical or dental plans or extended-health plans from an employer generally do not provide benefits for people who are not spouses.
Medical or dental plans or extended health plans from an employer generally do not provide benefits for people who are not spouses.
 
===Responsibility for your partner’s debts===
If you sign for a loan, it’s your loan and your responsibility, not your partner’s. Likewise, if your partner signs for a loan, it’s their responsibility.
 
If you both sign for a loan, however, you are both responsible to repay the debt. As well, if you '''guarantee''' your partner’s loan, and your partner is unable or refuses to make the payments, you’ll be responsible. That is so even though you may not have had any benefit from the loan. If you end up paying some or all of the loan, you can pursue your partner to pay you back.
 
===If you separate, your rights to spousal support===
When a couple breaks up, support is money one person pays another to help with expenses. To be eligible to receive '''spousal support''' from your partner, you must have either:
*lived in a marriage-like relationship with your partner for two years or more, or
*lived in a marriage-like relationship with your partner and had a child with them.
 
See our information on [[Spousal Support (Script 123)|spousal support (no. 123)]] for the factors that go into a support award.
 
===Your rights to property acquired during the relationship===
Rights to property is one of the key areas in which being a spouse under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec84_smooth Family Law Act]'' makes a difference. Under the Act, spouses are presumed to keep the property each of them brought into their relationship and to share in the things they acquired during their relationship (called “'''family property'''”). Only spouses who are '''married''' or lived together in a marriage-like relationship '''for at least two years''' share an interest in family property.


==Are you responsible for your partner’s debts?==
If you do not meet this definition of spouse, the only property you are presumed to keep is the property you brought into the relationship. As well, if you own property together (jointly) — such as a house, a car, or bank accounts — you are each presumed to have an equal interest in the joint property.  
If you sign for a loan, it’s your loan and your responsibility, not your partner’s. Likewise, if partner signs for a loan, it’s his or her responsibility.


If you both sign for a loan, however, you are both responsible to repay the debt, even if you’re just a guarantor and you both mean the loan to be your partner’s responsibility. This means that if your partner is unable or refuses to make the payments, you’ll be responsible, even though you may not have had any benefit from the loan. But if you end up paying some or all of a joint loan, you can apply to the court for an order that him or her pay you back.
If you contributed to the purchase of an asset owned by your partner, or paid more for the purchase of a joint asset than your partner, you may be able to get out what you put in. But you will have to prove your contributions to the purchase and that you didn’t mean your extra contributions to be a gift.


==If you separate, can you get spousal support?==
The law in this area is complex and it is highly advisable to seek legal advice.
If you have lived in a marriage-like relationship with your partner for two years or more, you may be eligible to receive spousal support from your partner. The only exception to that rule is if you and your partner have a child together, then you may be eligible to receive spousal support even though you have lived together in a marriage-like relationship for less than two years.  


==What rights do you have to property acquired during the relationship?==
===Your rights to property based on “unjust enrichment”===
This is where there are the biggest differences between being a spouse and not being a spouse. The ''Family Law Act'' requires that family property be shared between spouses, and for the purposes of this part of the act, “spouse” is defined as:
If you contributed in some way to the assets owned by your partner, you may be entitled to a share of that property based on '''unjust enrichment'''. To claim an interest in your partner’s property, you must show three things:
*someone who is married; and,
*your partner gained a benefit from your contributions,
*someone who lived with someone else in a marriage-like relationship for at least two years.
*you suffered a loss of some sort as a result of making those contributions, and
*there is no legal reason why your partner should have received the benefit of your contributions at the cost of your loss.


If you do not qualify as a spouse, the only property you are presumed to have an interest in is the property you own and the property you jointly own with your partner. If you own an asset together (like a house, a car, or a bank accounts), you are each presumed to have an equal interest in the asset. If you contributed to the purchase of an asset owned only by your partner, or paid more for the purchase of a joint asset than your boyfriend or girlfriend, you may be able to get out what you put in, however you have to be able to prove your contributions to the purchase and that you didn’t mean to give your extra contributions to your partner as a gift.
If you can prove these things, a court may agree your partner was unjustly enriched by your contributions and that you should be compensated for your loss. The court can make an order requiring your partner to compensate you. If your partner can’t afford to make the payment, the court may impose a trust, called a “'''constructive trust'''”, on your partner’s property so you can be paid the compensation you are owed.
The law in this area is complex and it is highly advisable to seek legal advice.


The law in this area is complex and you should to speak to a lawyer.
==Common questions==


==What about the law of “unjust enrichment”?==
===Will I have to go to court?===
If you contributed in some way to the assets owned by your partner, you may be entitled to a share of that property based on an “unjust enrichment” claim. To claim an interest in your partner’s property, you must show three things:
If you separate, you may have to go to court to sort out some of your support rights and perhaps your property rights. Family Court is a part of the BC Provincial Court, where you can settle many questions dealing with support for you and your children, plus guardianship, parenting arrangements, and contact. Family Court '''can’t''' deal with property issues and it can’t make orders about who will live in the family home. For this, you’ll have to go to BC Supreme Court.
*that your partner gained a benefit from your contributions;
*that you suffered a loss of some sort as a result of making those contributions; and
*that there is no legal reason why your partner should have received the benefit of your contributions at the cost of your loss.


If you can prove these things, the court may agree that your partner was unjustly enriched by your contributions and that you should be compensated for your losses. The court will make an order requiring your partner to compensate you. If he or she can’t afford to make the payment, the court may impose a trust, called a “constructive trust”, on your partner’s property so that you can be paid the compensation you are owed.
For more on going to court, see our information on [[Family Court (Script 110)|Family Court (no. 110)]].


The law in this area is very complex and you should speak to a lawyer.
===Do I need to make a will?===
If you want to make sure your partner and children are taken care of after your death, you need to make a '''will'''. In your will, you can say who you want your property to go to. You can also name a guardian who’ll be legally responsible for your children after you and your partner die.


==What if you have to go to court?==
For more, see our information on [[Making a Will and Estate Planning (Script 176)|making a will (no. 176)]] and [[What Happens When You Die Without a Will? (Script 177)|what happens when you die without a will (no. 177)]].
If you separate, you may have to go to court to sort out some of your support rights and perhaps your property rights. Family Court is a part of Provincial Court, where you can settle many questions dealing with support for you and your children, plus guardianship, parenting arrangements and contact. Family Court can’t deal with property issues and it can’t make orders about who will live in the family home. For this, you’ll have to go to Supreme Court, and you’ll likely need a lawyer.


For more information on Family Court, refer to script [[Family Court (Script 110)|110]] on “Family Court”.
==Get help==


==Do you need to make a will?==
==With more information===
If you want to make sure your partner and children are taken care of after your death, you need to make a will. In your will, you can say who you want your property to go to. You can also name a guardian who’ll be legally responsible for your children after you and your partner die. A court can always make an order that is different than your intentions for the children, however, if this would be in the children’s best interests. You should encourage your spouse to make a will too.
The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has information on unmarried relationships.
:Web: [http://wiki.clicklaw.bc.ca/index.php/Other_Unmarried_Relationships wiki.clicklaw.bc.ca]


For more information, refer to script [[What Happens When Your Spouse Dies (Script 150)|150]] on “What Happens When Your Spouse Dies” and script [[What Happens When You Die Without a Will? (Script 177)|177]] on “What Happens When You Die without a Will?”.
'''Legal Services Society''', the legal aid provider in BC, publishes the booklet “[http://www.legalaid.bc.ca/publications/pub.php?pub=347 Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce]”.
:Web: [http://www.legalaid.bc.ca/ legalaid.bc.ca]


==Where can you get more information?==
*Read the [[Other Unmarried Relationships]] page of the wikibook ''JP Boyd on Family Law'', published by Courthouse Libraries BC.
*Read the booklet “[http://www.legalaid.bc.ca/publications/pub.php?pub=347 Living Together or Living Apart: Common-law Relationships], Marriage, Separation, and Divorce” by the Legal Services Society, BC and available for free on their website at [http://www.legalaid.bc.ca www.legalaid.bc.ca]. To find it, click “Our publications” then under “I want to find a publication by subject,” click “Family law”.
*Refer also to the other scripts in [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law this Dial-A-Law series].




[updated August 2017]
[updated August 2017]


'''The above was last reviewed for accuracy by Thomas E. Wallwork.'''  
'''The above was last reviewed for legal accuracy by Thomas E. Wallwork.'''
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