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

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = Thomas E. Wallwork|date= August 2017}} {{Dial-A-Law TOC|expanded = relationships}}
Not all couples who live together meet the definition of spouse under BC’s family law. Those who aren’t considered spouses have some rights but not others. Learn what happens if you’re in an unmarried relationship that ends.


{{Dial-A-Law TOC|expanded = family}}
{{PLSStorybox
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:
| image = [[File:Serena.png|link=]]
| text = “My partner and I lived together for 17 months before we ended our relationship. We had bought a place together. It was only in my partner’s name, as was the mortgage. I thought I was automatically going to get half the property. But because we lived together for less than two years, that’s not the case. I have a harder path to asking a court for a share of the property."<br>
– Serena, Kimberley, BC
}}


*your rights to social assistance, pension plan benefits, employment insurance benefits, medical and dental coverage, and coverage under ICBC insurance programs;
==What you should know==
*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”?==
===Who a spouse is===
Under the provincial ''Family Law Act'', “spouse” includes people who are married to each other as well as:
There are two main laws that define who a '''spouse''' is. [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html The federal ''Divorce Act''] defines a spouse as either of two people who are '''married''' to each other.
*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?==
[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth BC’s ''Family Law Act''] expands the definition. Here, the term spouse also includes:
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.
* 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 less than two years and have had a '''child together''' (in this case, though, you '''aren’t''' considered a spouse when it comes to property, debt or pensions; we explain what this means shortly).


==What about getting benefits under a pension plan?==
A couple is living in a '''marriage-like relationship''' if they present themselves as a couple to family and friends, and carry out their financial and household affairs as a couple.
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”.


Private pension plans generally do not provide benefits for people who are not spouses.
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). Or you have a child together but have never lived together.


==Can you get Employment Insurance benefits?==
===Your rights to support===  
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.
Support is money paid by one parent or guardian to another, or one spouse to the other, for financial help after a relationship ends.


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.
====Child support====
Under BC law, each parent and guardian of a child has a duty to financially support the child. It doesn’t matter if the parents of a child have ever lived together. Generally, you can ask for child support from the other person as long as they’re a parent of the child under BC law. The other parent must pay child support for that child under the Child Support Guidelines.


==Are you covered under your partner’s medical and dental plans?==
To learn more, [[Child Support (No. 117)|see our information on child support]].
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.
====Spousal support====
A person who’s a spouse under the BC ''Family Law Act'' is eligible to apply for spousal support. (See “Who a spouse is” above). Someone who isn’t a “spouse” under BC family law cannot apply for spousal support.


==Are you responsible for your partner’s debts?==
To learn more, [[Spousal Support (No. 123)|see our information on spousal support]].
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.
===Your rights to property acquired during the relationship===
Property division is one of the areas in which being a spouse under the ''Family Law Act'' makes a difference. Under the Act, '''spouses''' are presumed to:


==If you separate can you get spousal support from your spouse?==
* keep the property each of them brought into their relationship
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.
* keep certain other property such as inheritances and gifts from someone other than your spouse
* share the other things they acquired during their relationship, no matter who bought it (called '''family property''')


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 [[Spousal Support (Script 123)|123]] on “Spousal Support”.
Only spouses who are '''married''' or who’ve lived together in a marriage-like relationship for ''at least two years'' share an interest in family property. If you’re in a relationship that doesn’t meet this definition of spouse, you’re only allowed to keep the property you brought into the relationship.


==If you separate can you get child support from your spouse?==
If you own property together (jointly) — such as a house, a car, or bank accounts — you’re each presumed to have an equal interest in that joint property.
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.
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’ll have to prove your contributions to the purchase. And you’ll have to show that you didn’t mean for your extra contributions to be a gift.


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 [[Unmarried Spouses: About the Children in Your Family (Script 147)|147]] on “Unmarried Spouses: About the Children in Your Family”.
To learn more, [[Dividing Property and Debts|see our information on dividing property and debt]].


==What rights do you have to property acquired during the relationship?==
Because the law in this area is complex, you should get legal advice.
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.
===Your rights to property based on 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 '''unjust enrichment'''. To claim an interest in your partner’s property, you must show three things:


The law in this area is complex and you should to speak to a lawyer.
* your partner gained '''a benefit''' from your contributions,
* you suffered '''a loss''' as a result of making those contributions, and
* there’s '''no legal reason''' why your partner should have received the benefit of your contributions at the cost of your loss.


==What about the law of “unjust enrichment”?==
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 order that your partner compensate you. If your partner can’t afford to make the payment, the court may impose a trust, called a '''constructive trust''', on their property. Then you can be paid the compensation you’re owed.
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 complex and it’s highly advisable to seek legal advice.


The law in this area is very complex and you should to speak to a lawyer.
===Responsibility for 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. But if you both sign for a loan, you are both responsible to repay the debt.


==What if you have to go to court?==
If you '''guarantee''' (promise to pay) your partner’s loan, and your partner is unable to make the payments (or refuses to), you’re responsible. That’s true even though you may have had no benefit from the loan. If you end up paying some or all of the loan, you can ask your partner to pay you back.
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”.
===Getting income assistance===
The BC government gives income assistance to those who need financial help.


==Do you need to make a will?==
As soon as you start living with someone else, the income assistance office may treat you like spouses. When you apply for income assistance, your caseworker will look at what income and assets you both have.
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.


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?”.
[https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-40/latest/sbc-2002-c-40.html#sec1.1_smooth Under BC’s income assistance law], '''spouse''' includes people living together for at least the last '''12 months''' in a row. The income assistance caseworker must believe that, like a marriage-like relationship, your relationship shows:


==Where can you get more information?==
* financial dependence or interdependence, and
*Read the [[Other Unmarried Relationships]] page of the wikibook ''JP Boyd on Family Law'', published by Courthouse Libraries BC.
* social and familial interdependence.
*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://http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law this Dial-A-Law series].


If you meet this definition and qualify for income assistance, you’ll get it at the rate for a couple or family — not as two single people.


[updated November 2014]
You have the right to challenge the decision of the income assistance office. For step-by-step guidance, [[Income Assistance: Reconsiderations and Appeals|see our information on income assistance reconsiderations and appeals]].


If you claim income assistance as a single person when you’re actually living with someone else as a couple, you:


----
* may have to pay back any benefits you’ve received,
----
* may face a civil court case or even criminal charges, and
* could be refused future services by the Ministry of Social Development and Poverty Reduction.


===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'''.


The '''Canada Pension Plan''' allows pension credits earned during a marriage-like relationship to be divided. This is true as long as spouses have lived together for at least one year and an application is made within four years of the separation date.
Private pension plans generally don’t provide benefits for people who aren’t spouses.
===Getting employment insurance benefits===
The federal government provides '''employment ensurance (EI) benefits''' to workers who lose their job. You may be eligible for EI benefits if you leave a job to follow your partner to a new place. Employment insurance defines a couple as '''spouses''' if they’ve lived together in a “conjugal relationship” for at least '''12 months''' in a row.
You can also get EI benefits if you leave your job to follow your partner if you’re:
* expecting the birth of a child, or
* caring for an immediate family member.
Note that you won’t qualify for benefits if the government concludes there were reasonable ways you could have kept your job. These might include requesting a transfer or commuting from the new place of residence.
===Coverage under your partner’s medical and dental plans===
The BC Medical Services Plan covers people who live together in a marriage-like relationship. There’s no requirement about how long you must be living together.
Medical or dental plans or employers’ extended health plans generally don’t provide benefits for people who aren’t spouses.
==Common questions==
===Will I have to go to court?===
If you separate, you may have to go to court to sort out some of your support and property rights. BC Provincial (Family) Court can help you deal with support for you and your children, plus guardianship, parenting arrangements, and contact. Family Court can’t deal with property issues. It also can’t make orders about who will live in the family home. For these issues, you’ll have to go to the BC Supreme Court.
For more on going to court, [[Provincial (Family) Court|see our information on Family Court]].
{| class="wikitable"
|align="left"|'''Tip'''
You may be able to deal with some or all of your family law issues outside of court through '''mediation'''. You can try contacting a '''family justice counsellor'''. They are mediators who are specially trained to help families with guardianship, parenting, child support, and other family law issues. [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors See the BC government website to learn more].
|}
===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 it, you can say who you want your property to go to. You can also name a guardian. They’ll be legally responsible for your children after you and your partner die.
For more, [[Preparing a Will and Estate Planning|see our information on preparing a will]] and [[When Someone Dies Without a Will|when someone dies without a will]].
==Who can help==
===With more information===
The wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, has information on unmarried relationships.
[[Other Unmarried Relationships|Visit website]]
'''Legal Aid BC''' has information about family law basics in its booklet ''Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce''.
[https://legalaid.bc.ca/publications/pub/living-together-or-living-apart Visit website]
===Free and low-cost legal help===
Options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
{{Dial-A-Law_Navbox|type=families}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law_Navbox|type=family}}

Revision as of 01:55, 6 October 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Thomas E. Wallwork in August 2017.

Not all couples who live together meet the definition of spouse under BC’s family law. Those who aren’t considered spouses have some rights but not others. Learn what happens if you’re in an unmarried relationship that ends.

What you should know

Who a spouse is

There are two main laws that define who a spouse is. The federal Divorce Act defines a spouse as either of two people who are married to each other.

BC’s Family Law Act expands the definition. Here, the term spouse also includes:

  • 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 less than two years and have had a child together (in this case, though, you aren’t considered a spouse when it comes to property, debt or pensions; we explain what this means shortly).

A couple is living in a marriage-like relationship if they present themselves as a couple to family and friends, and carry out their financial and household affairs as a couple.

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). Or you have a child together but have never lived together.

Your rights to support

Support is money paid by one parent or guardian to another, or one spouse to the other, for financial help after a relationship ends.

Child support

Under BC law, each parent and guardian of a child has a duty to financially support the child. It doesn’t matter if the parents of a child have ever lived together. Generally, you can ask for child support from the other person as long as they’re a parent of the child under BC law. The other parent must pay child support for that child under the Child Support Guidelines.

To learn more, see our information on child support.

Spousal support

A person who’s a spouse under the BC Family Law Act is eligible to apply for spousal support. (See “Who a spouse is” above). Someone who isn’t a “spouse” under BC family law cannot apply for spousal support.

To learn more, see our information on spousal support.

Your rights to property acquired during the relationship

Property division is one of the areas in which being a spouse under the Family Law Act makes a difference. Under the Act, spouses are presumed to:

  • keep the property each of them brought into their relationship
  • keep certain other property such as inheritances and gifts from someone other than your spouse
  • share the other things they acquired during their relationship, no matter who bought it (called family property)

Only spouses who are married or who’ve lived together in a marriage-like relationship for at least two years share an interest in family property. If you’re in a relationship that doesn’t meet this definition of spouse, you’re only allowed to keep the property you brought into the relationship.

If you own property together (jointly) — such as a house, a car, or bank accounts — you’re each presumed to have an equal interest in that joint property.

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’ll have to prove your contributions to the purchase. And you’ll have to show that you didn’t mean for your extra contributions to be a gift.

To learn more, see our information on dividing property and debt.

Because the law in this area is complex, you should get legal advice.

Your rights to property based on 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 unjust enrichment. To claim an interest in your partner’s property, you must show three things:

  • your partner gained a benefit from your contributions,
  • you suffered a loss as a result of making those contributions, and
  • there’s 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, a court may agree your partner was unjustly enriched by your contributions, and that you should be compensated for your loss. The court can order that your partner compensate you. If your partner can’t afford to make the payment, the court may impose a trust, called a constructive trust, on their property. Then you can be paid the compensation you’re owed.

The law in this area is complex and it’s highly advisable to seek legal advice.

Responsibility for 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. But if you both sign for a loan, you are both responsible to repay the debt.

If you guarantee (promise to pay) your partner’s loan, and your partner is unable to make the payments (or refuses to), you’re responsible. That’s true even though you may have had no benefit from the loan. If you end up paying some or all of the loan, you can ask your partner to pay you back.

Getting income assistance

The BC government gives income assistance to those who need financial help.

As soon as you start living with someone else, the income assistance office may treat you like spouses. When you apply for income assistance, your caseworker will look at what income and assets you both have.

Under BC’s income assistance law, spouse includes people living together for at least the last 12 months in a row. The income assistance caseworker must believe that, like a marriage-like relationship, your relationship shows:

  • financial dependence or interdependence, and
  • social and familial interdependence.

If you meet this definition and qualify for income assistance, you’ll get it at the rate for a couple or family — not as two single people.

You have the right to challenge the decision of the income assistance office. For step-by-step guidance, see our information on income assistance reconsiderations and appeals.

If you claim income assistance as a single person when you’re actually living with someone else as a couple, you:

  • may have to pay back any benefits you’ve received,
  • may face a civil court case or even criminal charges, and
  • could be refused future services by the Ministry of Social Development and Poverty Reduction.

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.

The Canada Pension Plan allows pension credits earned during a marriage-like relationship to be divided. This is true as long as spouses have lived together for at least one year and an application is made within four years of the separation date.

Private pension plans generally don’t provide benefits for people who aren’t spouses.

Getting employment insurance benefits

The federal government provides employment ensurance (EI) benefits to workers who lose their job. You may be eligible for EI benefits if you leave a job to follow your partner to a new place. Employment insurance defines a couple as spouses if they’ve lived together in a “conjugal relationship” for at least 12 months in a row.

You can also get EI benefits if you leave your job to follow your partner if you’re:

  • expecting the birth of a child, or
  • caring for an immediate family member.

Note that you won’t qualify for benefits if the government concludes there were reasonable ways you could have kept your job. These might include requesting a transfer or commuting from the new place of residence.

Coverage under your partner’s medical and dental plans

The BC Medical Services Plan covers people who live together in a marriage-like relationship. There’s no requirement about how long you must be living together.

Medical or dental plans or employers’ extended health plans generally don’t provide benefits for people who aren’t spouses.

Common questions

Will I have to go to court?

If you separate, you may have to go to court to sort out some of your support and property rights. BC Provincial (Family) Court can help you deal with support for you and your children, plus guardianship, parenting arrangements, and contact. Family Court can’t deal with property issues. It also can’t make orders about who will live in the family home. For these issues, you’ll have to go to the BC Supreme Court.

For more on going to court, see our information on Family Court.

Tip

You may be able to deal with some or all of your family law issues outside of court through mediation. You can try contacting a family justice counsellor. They are mediators who are specially trained to help families with guardianship, parenting, child support, and other family law issues. See the BC government website to learn more.

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 it, you can say who you want your property to go to. You can also name a guardian. They’ll be legally responsible for your children after you and your partner die.

For more, see our information on preparing a will and when someone dies without a will.

Who can help

With more information

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has information on unmarried relationships.

Visit website

Legal Aid BC has information about family law basics in its booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

Visit website

Free and low-cost legal help

Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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