Difference between revisions of "Couples Who Are Not Spouses: Your Income, Support and Property Rights"
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[updated November 2014]
[updated November 2014]
Revision as of 13:03, 11 August 2015
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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:
- your rights to social assistance, pension plan benefits, employment insurance benefits, medical and dental coverage, and coverage under ICBC insurance programs;
- 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”?
Under the provincial Family Law Act, “spouse” includes people who are married to each other as well as:
- 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.
This script is for people who are not spouses.
Can you get income assistance while living in an unmarried relationship?
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 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.
What about getting benefits under a pension plan?
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 239 on “Senior Law and Elder Abuse”.
Private pension plans generally do not provide benefits for people who are not spouses.
Can you get 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.
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.
Are you covered 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.
Medical or dental plans or extended-health plans from an employer generally do not provide benefits for people who are not spouses.
Are you responsible for your partner’s debts?
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 separate can you get spousal support from your spouse?
Spousal support is money paid by one spouse to the other after separation to help that spouse meet his or her financial needs. The Family Law Act allows unmarried people who have lived with someone in a marriage-like relationship for less than two years to apply for spousal support, but only if the couple have a child together.
The amount of spousal support payable is usually fixed using mathematical formulas set out in the Spousal Support Advisory Guidelines based on your incomes, the length of time you lived together and other factors. For information on spousal support, refer to script 123 on “Spousal Support”.
If you separate can you get child support from your spouse?
Child support is money paid by one parent to the other after separation to help that parent meet the financial needs of the children. Child support is payable by anyone who is a parent, whether they are married spouses, unmarried spouses or neither.
The partner of a parent can be required to pay child support, but only if both are parents of the child or the couple are spouses. Someone who is not the spouse of a parent doesn’t qualify as a stepparent who may be responsible for child support.
The amount of child support payable is fixed by the Child Support Guidelines according to the payor’s income and the number of children support is being paid for. For information on child support, refer to script 147 on “Unmarried Spouses: About the Children in Your Family”.
What rights do you have to property acquired during the relationship?
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:
- someone who is married; and,
- someone who lived with someone else in a marriage-like relationship for at least two years.
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.
The law in this area is complex and you should to speak to a lawyer.
What about the law of “unjust enrichment”?
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:
- 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.
The law in this area is very complex and you should to speak to a lawyer.
What if you have to go to court?
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 110 on “Family Court”.
Do you 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. 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.
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 “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 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 this Dial-A-Law series.
[updated November 2014]
The above was last reviewed for accuracy by JP Boyd.
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