Family Relationships

family relps law applies to

myths

unmarried

People in virtually any kind of relationship can find themselves having a problem involving family law. Some people are in long-term committed relationships which qualify as common-law, others are in shorter relationships, perhaps lasting for only one night, which produce children. Couples who are parents will need to make decisions about the care of the children and the payment of child support. Common-law couples will need to decide about the payment of spousal support. Unmarried couples may also have to decide about how property will be shared, but the rules that apply are very different than the rules for married spouses.

This chapter will provide a brief introduction to the issues that common-law and other unmarried couples face when a relationship ends, and discuss a few common misunderstandings about unmarried relationships.

I. Introduction

For the purposes of the provincial Family Relations Act, you are in a common-law relationship if you and your partner have lived together as a couple for at least two years. To be clear, the Family Relations Act doesn't actually talk about common-law relationships, it talks about "spouses" and who qualifies as a spouse, and the rights and obligations involved in being a spouse. Under the act, spouses are defined as people who have lived together for two or more years in a marriage-like relationship.

The other group of people the Family Relations Act talks about are "parents." Parents are defined as the biological parents of a child and people are spouses of a parent.

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.

A. 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.

Married couples can apply for relief under both the federal Divorce Act and the provincial Family Relations Act. The Divorce Act doesn't apply to anyone who isn't married, including common-law couples. Common-law couples can only apply for relief under the provincial Family Relations Act, and the sort of relief they can apply for is, generally speaking, limited to relief involving the care and control of children, child support and spousal support. Unmarried couples who are parents and have lived together for less than two years can only seek relief under the provincial Family Relations Act, and the sort of relief they can apply for is limited to the care of children and child support. Unmarried couples who have lived together for less than two years and aren't parents can't apply for any relief under the Family Relations Act. The same thing applies to unmarried couples who never lived together and don't have a child. All unmarried couples are excluded from the parts of the Family Relations Act that deal with property. Unmarried couples can only divide assets under the law of trusts or, in some cases, under the Partition of Property Act. There's a chart in the next segment that will explain this a bit more easily.

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. Under s. 1(1) of the Family Relations Act, "spouse" is defined like this:

"spouse" means a person who (a) is married to another person, (b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender, (c) applies for an order under this Act within 2 years of the making of an order (i) for dissolution of the person's marriage, (ii) for judicial separation, or (iii) declaring the person's marriage to be null and void, or (d) is a former spouse for the purpose of proceedings to enforce or vary an order. Being a spouse is a bit simpler than being a stepparent. A spouse is someone who is married to someone else or someone who has:

lived in a marriage-like relationship with someone else, for a period of at least two years as long as:

the application for relief under the act is made within one year of the couple's separation. For couples who have not married, the key issue is whether or not they qualify as spouses under the Family Relations Act because spouses have a broader range of rights and obligations than people who merely qualify as parents. This can be a bit difficult to figure out as it's not always clear how long a couple has lived together, or whether they were a couple for the whole time they lived together, and the act doesn't say what "marriage-like relationship" means. For a more complete discussion of this issue, see the Unmarried Couples > Common-Law Relationships chapter.

B. 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:

Married Couples Common-Law Couples Parents

Divorce Yes Care of Children Yes Yes Yes Child Support Yes Yes Yes Spousal Support Yes Yes Sharing Family Assets Yes Trust Claims to Assets Yes Yes Yes Government Benefits Yes Usually Wills & Estates Rights Yes Yes Pension Rights Yes Maybe C. The Alternatives to Marriage Project The Alternatives to Marriage Project is an interesting American organization seeking equality for unmarried couples, including straight and same-sex couples, with married couples. It takes the view that people who chose not to marry or cannot marry deserve equal rights and equal protection under the law as married couples. Their website offers a broad array of information for unmarried couples, visit it at www.unmarried.org.

Back to the top of this chapter.

II. A Few Surprisingly Common Misunderstandings

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.

A. 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.

B. "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."

C. 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."

D. 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.

E. 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.