Unmarried Spouses

The provincial Family Law Act defines spouse as including married spouses and unmarried couples, providing that the unmarried couple has lived together in a "marriage-like relationship" for at least two years, or lived together for less than two years if they have had a child. Because the federal Divorce Act only applies to married spouses, all of the rules that apply when unmarried relationships end are found in the Family Law Act.

This page talks about what it means to be in an unmarried spousal relationship, and looks briefly at how the issues of spousal support, children and child support, and assets and debts are usually dealt with. This page also discusses unmarried spouses' entitlement to government benefits.

This page only talks about the legal issues involved when a relationship breaks down. The ______ page talks about the emotional issues that come up when a relationship ends and how those issues can impact on the resolution of the legal issues.

Introduction

The legal rights and responsibilities people in an unmarried relationship owe to each other are described in a number of different laws, and these different laws have different definitions of what it means to be a spouse or a common-law partner; a couple might meet the test under one law but not under another. The really important question is this: Do I qualify as a "spouse" under this particular piece of legislation?

As a result, although married couples are always married spouses, unmarried couples aren't always unmarried spouses. For example, the federal Income Tax Act defines spouse as including people who have cohabited for one year, while the provincial Employment and Assistance Act defines spouse as including people living together for three months if a welfare caseworker believes that their relationship demonstrates "financial dependence or interdependence, and social and familial interdependence".

Regardless of a couple's federal or provincial status under these rules, it is not true that being an unmarried spouse or common-law partner means that you are legally married. Being married involves a formal ceremony and certain other legal requirements like a marriage licence. Without that ceremony and that licence, unmarried spouses will never be married, no matter how long they've lived together.

Provincial Legislation

For most provincial laws, the test is whether or not a particular couple are "spouses". Qualifying as a spouse might mean that you are entitled to the family rate for MSP, that you can share in your spouse's estate in the event your spouse dies or that you are no longer entitled to social assistance.

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. (The laws about sharing in a spouse's property after his or her death also require the spouses to have been living together at the time of your spouse's death.) Here's the definition from the Wills Variation Act:

"spouse" means a person who

(a) is married to another person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.

Here's the definition from s. 3 of the 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.

And here's the definition from the 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, from the other person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender.

As you can see, there are lots of subtle differences between these definitions, and can be very important to find out just how a particular law defines spouse.

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 Old Age Security 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 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 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 (3) 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 or having a particular kind of ceremony. Because the rights between the spouses came from principles established by the common law, these were 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 of 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 a couple are spouses under the particular law that they're looking at; all of their rights and entitlements come from the operation of a statute.

There is no such thing as a common-law spouse or a common-law marriage in British Columbia. If you're a "spouse", it's because of s. 3 of the Family Law Act.

Qualifying as an Unmarried Spouse

It's usually pretty hard to argue that you're not married if you're a married spouse. It's a lot easier for unmarried couples 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.

Living Together

This requirement of an unmarried spousal relationship is fairly self-explanatory. An unmarried couple who have lived together and had a child together are spouses who are eligible to ask for spousal support, regardless of how long or how short a period of time they lived together. An unmarried couple who have lived together for at least two years are spouses who are eligible to ask for spousal support and orders about the division of property and debt.

The only thing that needs to be pointed out is that the two year period doesn't need to be continuous. On the other hand, if a claim is based on the parties being unmarried spouses, the court will probably look at the nature of the relationship in more detail. A gap of a three of months in the middle of the two years a couple are supposed to have lived together might prevent someone from claiming that a couple are spouses; on the other hand, if the three months absence was because someone was working out of town, the three months may not matter very much.

A Marriage-Like Relationship

This is more complex than the calculation of the duration of a relationship, partly because it calls for the court to make a decision about the nature of the parties' private, personal relationship with one another. In a 1998 case called Takacs v. Gallo, the Court of Appeal endorsed these considerations:

• 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?

• Services:

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 which both agreed would be determinant of their overall relationship?

• Children:

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

In a nutshell, where the marriage-like quality of a relationship is disputed, the court will enquire as to how the couple represented themselves to their family and friends, and as to the nature of their financial relationship and household relationship. Did the couple present themselves as a family unit and conduct their personal affairs as a family unit? The judge in a 2003 case from Saskatchewan Court of Queen's Bench, Yakiwchuk v. Oaks, expressed the difficulty of determining what is and what is not a marriage-like relationship this way:

"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."

To be clear, though, mere roommates will never qualify as unmarried spouses. There needs to be some other dimension to the relationship indicative of a committment between the parties and their shared belief that they are in a special relationship with each other.

Time Limits

While a claim for child support with respect to a child of the parties will remain open until the child reaches the age of 19, and possibly longer, there are three important things you need to know about claims for spousal support and claims for child support against stepparents:

• A claim for child support against a spouse who is stepparent must be brought within one year of the stepparent's last contribution to the support of the child, and cannot be brought until after the spouses have separated.
• An unmarried spouse must bring a claim for spousal support within two years of the date of separation.
• An unmarried spouse must bring a claim for the division of property and debt within two years of the date of separation.

Bringing a claim means starting a court proceeding asking for a particular order, not the date when the first application is made in that proceeding.

The date of separation is the date when the "marriage-like" quality of an unmarried relationship ends. 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.

Effect of Dispute Resolution Processes

Under s. 198(5) of the Family Law Act, the running of the time limits is "is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." The purpose of this provision is to allow people to engage in dispute resolution without having to feel pressured into starting a court proceeding to stop a time limit from running out. However, this provision isn't a straightforward as it looks.

First, the parties have to be engaged in a process of family dispute resolution. That term is defined in s. 1 of the act as including:

1. the services of a Family Justice Counsellor;
2. mediation;
3. collaborative settlement processes; and,
4. arbitration.

You'll notice that negotiation isn't on this list. As well, under the Family Law Act Regulation, a process of mediation and arbitration requires the execution of a mediation agreement or an arbitration agreement to count as mediation or arbitration.

Second, the parties have to be engaged in one of these processes with a family dispute resolution professional. This term is defined in s. 1 of the act as including:

1. Family Justice Counsellors;
2. lawyers;
3. mediators who meet the training requirements set out in the Family Law Act Regulation; and,
4. arbitrators who meet the training requirements set out in the Family Law Act Regulation.

In other words, being engaged in a family dispute resolution process with someone like a community leader, an elder, a senior family member, a priest, an imam or a rabbi won't cut it unless the person also happens to fit into the definition of family dispute resolution professional.

Third, the parties must be engaged in the family dispute resolution process. That implies a process that is continuing and underway, rather than one which is started but never followed-through with.

Effect of Attempts to Reconcile

The Divorce Act talks about how the one year period a married couple must wait in order to get divorced on the basis of separation is not interrupted if the parties live together in an attempt to reconcile for less than ninety days. Similar language is used in the Family Law Act for the purpose of determining the date when a couple stops accumulating family property. Neither of these provisions apply to the two year time limit for bringing claims under the Family Law Act.

Rights and Responsibilities of Unmarried Spouses

Providing a couple qualify as spouses, either party is entitled to seek an order for spousal support under the Family Relations Act. The same principles apply to spouses from common-law relationships as apply to married spouses: the party claiming support must be able to show that he or she is financially dependant on the other party because of the way the couple chose to live during the relationship, that he or she has suffered an economic disadvantage arising from the relationship, or that he or she has suffered an economic disadvantage arising from the breakdown of the relationship. The simple fact of having been in a common-law relationship does not guarantee that spousal support will be paid; the person seeking support must establish that he or she is entitled to support.

When someone is found to be entitled to receive spousal support, the amount of support payable and the length of time for which it will be paid will usually be calculated using the formulas set out in the Spousal Support Advisory Guidelines. The Advisory Guidelines determine the amount of support based on the difference between the spouses' incomes and determine the length of the payments based on either the duration of the spouses' cohabiting relationship or the age of the youngest child.

See the section Spousal Support for more detailed information on spousal support and the Advisory Guidelines.

Back to the top of this chapter.

III. Children and Child Support

There is no minimum length-of-relationship requirement for any application involving children, although there is sometimes a difference between being a natural parent and being parent as the law defines the term.

A natural parent is the biological parent of a child. A legal parent is someone who becomes a parent through the operation of a law, such as through adoption. Under s. 1 of the Family Relations Act, a legal parent also includes stepparents and the common-law spouse of a parent, if that person has contributed to the support of the child.

A. Natural Parents A natural parent is a parent, and entitled to all of a parent's rights and obligations regardless of the nature of his or her relationship with the other parent.

Natural parents are entitled to all of the relief available under the Family Relations Act, from child support to custody, regardless of whether the parents were married or are common-law spouses. Natural parents who live together are presumed to share custody of their child.

See the section Children for more information.

B. Legal Parents Where a parent lives with another person in a marriage-like relationship for two years or more and the other person has contributed to the financial support of the child, the other other person will be a parent for the purposes of the Family Relations Act, providing an application involving the child is brought within one year of the of end the relationship.

From the point of view of the natural parent, this means that the legal parent can be required to continue to contribute to the support of the child through the payment of child support.

From the point of view of the legal parent, this means that your relationship with the child can continue after the end of the relationship. While you might be obliged to pay child support, you can also bring a claim against the natural parent for things like custody, guardianship and access to the child. You will also be able to ask that your child support payments be reduced to reflect the child support obligation of the child's other natural parent.

See the sections Children and Child Support for more information.

C. Adoption Common-law couples can apply to adopt a child together. A common-law spouse can also apply to adopt the other spouse's child, although the consent of the other natural parent of the child will usually be required.

See the chapter Other Family Law Issues > Adoption for more information.

D. Child Support Child support will be payable by anyone who is the natural parent of a child, regardless of whether the relationship which produced the child qualifies as common-law or not. Someone who becomes a legal parent, like the common-law spouse of a parent, may also be required to pay child support. Section 88 of the Family Relations Act states that:

Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child. According to s. 93(1)(a) of the act, child support is to be paid in the amount specified by the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply, including:

the tables that are used to calculate the amount of support; the exceptions when child support can be paid in an amount different than what the tables would normally require; and, the rules about the payment of children's special expenses. For common-law couples, the Guidelines for child support are set by provincial laws, however, as the Guidelines that apply are the same as for married couples under the federal Child Support Guidelines, all of the same rules will apply.

See the section Child Support for more information.

Back to the top of this chapter.

IV. Assets and Debts

Anyone who is not married, including common-law spouses, is excluded from the parts of the Family Relations Act which deal with the division of family assets and pensions. As a result, a common-law spouse making a claim for the division of assets will have to rely on the law of trusts to obtain an order for a share of assets owned by the other spouse.

A. Constructive Trusts The most common trust claim is a claim for a constructive trust. A constructive trust is one of the common law remedies for unjust enrichment. Unjust enrichment is proven by showing that:

one party has gained an benefit from the other party; the other party has been deprived in some way related to the benefit; and, there is no legal reason why the first party gained the benefit. If these three criteria are met, the court may decide that the person gaining the benefit was unjustly enriched and impose a constructive trust to compensate the deprived party.

Think of it like this:

Partner A and Partner B have a very traditional relationship: A goes off and works at a cardboard box factory bringing home the bacon, while B stays home, maintains the household and cooks and cleans. Partner A gets the benefit of Partner B's domestic services, which saves A from having to hire a cook and a housekeeper. At the same time, however, B could have sold exactly those services to someone else and been paid for working elsewhere as a launderer, cook or housekeeper. Of course, because of the romantic nature of their relationship A never paid B for his services and B never asked for payment. Partner A has been unjustly enriched as a result of the services she gained from Partner B, and B lost the value he would have received by performing those services for someone else. While constructive trusts are the most common way to establish interest in an asset, they are always difficult to prove and the results can be disappointingly small. For example, the court might look at Partner A and Partner B and say to B: "Ah, but you didn't pay any rent during your relationship, did you? You got free room and board in exchange for your work in the house, and we'll chop the value of that from your claim."

You should not get the impression that claims in constructive trust are doomed to fail. They're not. However, you must understand that they're generally not nearly as fruitful as claims under the Family Relations Act. Marriage is the only way to guarantee an interest in your partner's assets.

Trust claims are discussed in a lot more detail in the chapter Family Assets > Dividing Assets and in my blog.

B. Jointly-Owned Assets In the case of jointly owned assets, that is, assets held in the name of both parties, there is a presumption that each party has an equal interest in the asset, regardless of how they may have contributed to the purchase of an asset.

Most of the time one party will keep the asset and buy the other person out by paying a cash amount equal to his or her interest in the property. If there isn't enough cash to make that a possibility, often the solution lies in selling the asset and splitting the sale proceeds.

It the parties own real estate together, they can also apply for an order that the property be sold and the proceeds divided between them under the provincial Partition of Property Act.

C. "Opting-In" to the Family Relations Act Until 24 November 2011, common-law couples who had executed a cohabitation agreement were subject to the full benefit and misery of the portions of the Family Relations Act that govern the division of property for married couples as a result of s. 120.1:

(1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to (a) the agreement ... (2) In this section: "agreement" means an agreement that would be (a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or (b) a separation agreement if the spouses were married to each other or separated after marriage. "property" means property of a spouse that would be a family asset under Part 5 if the spouses were married to each other. This section was repealed upon the new Family Law Act receiving royal assent and is no longer in force in British Columbia.

D. Debts As far as debts are concerned, common-law partners will generally keep the personal debts they entered into the relationship with. They may be responsible for sharing the debts which were incurred afterwords, but only if the debt is connected with the relationship and wasn't spent on purely personal expenses. Debts incurred jointly will usually be shared between the parties.

However, if a couple has a joint debt, such as a bank loan which both parties signed, a joint credit card or a secondary credit card on the other party's account, both parties will continue to be responsible for the debt after their relationship has broken down. This has nothing to do with family law, it has to do with the bank wanting to secure payment of its loans. This can have some serious consequences, since the bank won't care who's more responsible for the debt than the other. If a payment is missed or the loan goes into default, both parties will be responsible and the credit ratings of both will suffer.

Back to the top of this chapter.

V. Government Benefits

The fact that a couple live together may entitle one or both of them to certain benefits paid by the federal or provincial government of they qualify as spouses. It can also expose them to the prospect of losing those benefits, most notably social assistance payments.

A. Social Assistance The ministry which administers the Employment and Assistance Act and is responsible for social assistance often treats anyone living together as a couple as being in a common-law relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under 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 return to treating you as single.

B. Employment Insurance EI applies the same standard to common-law couples as it does to married couples.

C. Canada Pension Plan Common-law couples may share in each other's pension benefits, however this sharing is not automatic. You must apply to share your CPP credits with your spouse.

There may be positive income tax consequences if you elect to share your CPP benefits. You will be eligible to share your pension if you have been living togther as a couple for at least one year and you are both at least 60 years old.

D. 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 for two single people if you have been living together as a couple for at least one year.

E. 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 pay the family rate rather than the single rate.

If you or your partner receive any workplace medical or dental insurance coverage, check with the plan adminstrator to see if common-law partners are eligible beneficiaries under your plan.

F. ICBC Death Benefits A surviving common-law partner can apply to receive death benefits from ICBC when the other party is killed in a car accident, regardless of whose fault the accident was.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA, DA, Civil Marriage Act, marriage prohibited degrees act, Marriage Act,

Links

• bulleted list of linked external websites referred to in page