Family Relationships
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
This chapter talks about different kinds of family relationships and how the law can impact on them. This page talks about children's relationships with extended family members 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.
Introduction
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 ‘’Criminal Code’’, it has been a part of the legislation on family law since the 1857 English ‘’Divorce and Matrimonial Causes Act.’’ 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 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 relationships of unmarried spouses end when they separate. Unmarried spouses do not need to get a divorce.
- ’‘’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.
- ’’’Children’s caregivers:’’’ 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.
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 ______ page of this website, and the next page, _____ , provides a lot more information about the law relating to marriage.
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 ‘’Family Law Act’’ are based on when a married couple began to live together if that date is earlier than the date of 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.
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’’).
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’’.
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.
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.
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 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);
- 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.
More information about void marriages, voidable marriages and annulment is available in the next page, _______ .
Separation
Separation is simple: the parties must simply start living "separate and apart" from each another, 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.
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.
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.
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 spouses have been separated for at least one year;
- one of the spouses committed adultery; or,
- one of the spouses treated the other spouse with such mental or physical cruelty that the relationship cannot continue.
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.
Unmarried Spousal Relationships
Section 3(1) of the provincial ‘’Family Law Act’’ defines ‘’spouse’’ as including married spouses as well as:
- people who have lived in a “marriage-like relationship” for at least two years; and,
- 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.
The federal ‘’Divorce Act’’ doesn’t apply to any unmarried relationship, whether the parties are spouses under provincial law or not.
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 _______ page talks about when a relationship becomes “marriage-like”.
Separation
Unmarried spouses are separated when they begin to live "separate and apart" from each another, 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.
For unmarried spouses, separation is the end of their emotional and legal relationship with each other. Unmarried spouses do not need to get divorced.
Other Unmarried Relationships
The other group of people the ‘’Family Law Act’’ talks about are ‘’parents’’. Parents are defined as the biological parents of a child and people are spouses of a parent.
STOPPED
Under the Family Relations Act, people who meet the definition of spouse or parent may have certain responsibilities, like the obligation to pay child support, and certain rights, like the right to apply for spousal support or the right to be involved in the parenting of a child. Parents and spouses can be of the same or opposite genders.
Parents, Stepparents and Spouses
When married people break up, they are usually concerned about things like spousal support, the division of the family assets, and how the children will be looked after. Common-law couples and other unmarried couples share many of the same problems. From a legal perspective, the difference between married and unmarried couples is about which laws apply and sometimes how they apply.
Under s. 1(1) of the Family Relations Act, "parent" is defined like this:
"parent" includes (a) a guardian or guardian of the person of a child, or (b) a stepparent of a child if (i) the stepparent contributed to the support and maintenance of the child for at least one year, and (ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child; In other words, a parent includes a biological parent plus the other people this section adds to the definition of parent: a person who is the child's guardian and a person who is a stepmother or stepfather. Subsection (2) says a bit more about qualifying as a stepparent:
(2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child (a) are or were married, or (b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender. Together, these two subsections impose three conditions that must be met to qualify as a stepparent. A stepparent is:
someone who has married a parent or who has lived with a parent in a common-law relationship, as long as:
that person has also contributed to the support of the child for a least one year, and the application for relief under the act is made within one year of the person's contribution to the support of the child.
Extended Family Relationships
Grandparents, etc.
Different Rights and Responsibilities
Unmarried couples can do all of the things married couples can. They can live together, they can have a child together, they can buy a house together, and they can have a relationship that last for decades and looks, in all respects, exactly like a married relationship. Why is there a difference in the way the law treats unmarried couples?
In the 2003 Supreme Court of Canada case of Walsh v. Bona, the court was asked to decide whether it was unfair to deny unmarried couples the benefits of certain legislation that only applied to married couples. In its decision, the court held that regardless of how the similar the parties' relationship appeared to a married relationship, they had nevertheless made the choice not to become married, and the fact that they chose not to marry meant that they had also chosen not to have the benefits of the legislation that applied to married people.
Looking at it another way, getting married implies a certain level of committment that living together usually doesn't. The parties to a marriage expect that their relationship will be permanent, a view which is generally shared by society and by the legislation on family law. The Family Relations Act imposes a greater responsibility on married couples than it does on common-law couples, and a greater responsibility on common-law couples than it does on people who are only parents and not spouses; the Divorce Act doesn't apply to anyone who isn't married.
These are the legal rights available to people who are married and common-law spouses, and to people who are neither married nor common-law but have a child together:
A Few Surprisingly Common Misunderstandings
Married Relationships
A lot of people seem to labour under certain misconceptions about what marriage, 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.
Marriage and Getting Married
It is not true that a common-law couple is automatically "married" once they've lived together for a certain amount of time. A common-law couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage."
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.
Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, so long as the marriages meet the criteria for valid marriages, discussed in the next chapter. 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 separation. For example, an alcohol-induced Las Vegas marriage was upheld in the very funny 2005 case of Davison v. Sweeney, 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.
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 common-law relationship or a formal 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.
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 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. To be separated, you just need to decide that your relationship is over and say so.
The fact that a couple are separated isn't enough to let a spouse remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage will be invalid.
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 common-law relationship. Technically, this is adultery, but no one except the Pope or your in-laws are likely to care.
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.
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 assets 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 remain married if your spouse dies. Once that happens, your marriage is at an end. You do not need to obtain a divorce.
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.
The one exception to this last rule has to do with the "consumation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consumated 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 physicial condition which makes sex impossible.
Unmarried Spousal Relationships
A lot of people seem to have a lot of misconceptions about what being common-law actually involves and how you become common-law. Part of this, I'm sure, comes from television and movies; others are urban myths that get spread during a few pints at the pub. This segment addresses a few of the most common of these mythunderstandings. Sorry about the pun.
The Automatic Marriage
It is not true that a common-law 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; a common-law couple is never married unless there is an actual marriage ceremony performed by someone licenced to perform marriages.
"Applying" for Common-Law Status
A couple becomes common-law when they qualify as a "spouse" under whatever legislative scheme 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 defition of "spouse."
The Accidental Spouse
It is not true that you become common-law spouses simply by living with someone for long enough. You must be living together in a marriage-like relationship to become a common-law couple; mere roommates will not become common-law spouses by accident. There wouldn't be any frat houses if this wasn't the case.
Likewise, a couple won't become common-law spouses if they have a child. They must still live together for long enough to meet the definition of "spouse."
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 common-law 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. To be completely clear:
you do not need to "file for separation" to be separated; there are no court or other papers you have to sign to be separated; and, you don't need to appear before a judge, lawyer or shaman to be separated. To separate, you just need to decide that your relationship is over and say so.
Getting Divorced
Common-law 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.
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