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| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart] | | link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart] | ||
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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. | 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, while others are in shorter relationships, perhaps lasting for only one night, which produce children. | ||
This | 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 focuses on the different kinds of family relationships recognized by the ''[[Family Law Act]]''. | |||
In this first section we take a look at the range of family relationships, and examine how the law impacts on people in these relationships. We also discuss some urban myths about married and unmarried relationships. | |||
The other sections in this chapter go into more detail about the legal rights and duties involved in married relationships, unmarried spousal relationships, and other unmarried relationships. | |||
==Introduction== | ==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 ''[http://canlii.ca/t/7vf2 Criminal Code]'', it has been a part of the legislation on family law since the English ''Divorce and Matrimonial Causes Act'' was passed in 1857. As society has evolved, so have the obligations triggered by different kinds of family relationships | 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 ''[http://canlii.ca/t/7vf2 Criminal Code]'', it has been a part of the legislation on family law since the English ''Divorce and Matrimonial Causes Act'' was passed in 1857. As society has evolved, so have the obligations triggered by different kinds of family relationships. | ||
Family law in British Columbia deals with four kinds of family relationship. | |||
*''' | *'''Married spouses:''' People who are married spouses have been wed at a ceremony conducted by someone licensed by the province to perform marriages. Married relationships end when a court makes an order for the spouses’ divorce. | ||
*'''Unmarried | *'''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. | ||
*'''Children’s caregivers and extended family:''' 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. | *'''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 and extended family:''' 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=== | ===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 | 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 licensed to conduct marriages, who is either a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia is described in detail in the [[Married Spouses]] page of this chapter, which has more information about the law relating to marriage. | ||
====Living together==== | ====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 provincial ''Family Law Act'' are based on when a married couple began to live together if that date is earlier than the date of marriage. | 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 provincial ''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==== | ====Marriage==== | ||
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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''. | 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 | 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. It 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. | 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. | ||
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====Annulment==== | ====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 | 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 a 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), | *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), | ||
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*one or both of the spouses agreed to marry as a result of fraud or misrepresentation. | *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 section on [[Married Spouses]] . | More information about void marriages, voidable marriages, and annulment is available in the section on [[Married Spouses]] . | ||
====Separation==== | ====Separation==== | ||
Separation is simple: the parties must simply start living "separate and apart" from each other, 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. | Separation is simple: the parties must simply start living "separate and apart" from each other, 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. | For married spouses, separation may signal the breakdown of their emotional relationship but it doesn't end their legal relationship. To do this, one or both spouses must apply to court for a divorce. | ||
====Divorce==== | ====Divorce==== | ||
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#people who have lived in a marriage-like relationship for less than two years and have had a child together. | #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. | 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. | The federal ''Divorce Act'' doesn't apply to any unmarried relationship, whether the parties are spouses under provincial law or not. | ||
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====Living together==== | ====Living together==== | ||
The relationship between unmarried spouses begins on the date they begin to live together in a "marriage-like relationship" | 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 section on [[Unmarried Spouses]] talks about when a relationship becomes "marriage-like" in nature. | The section on [[Unmarried Spouses]] talks about when a relationship becomes "marriage-like" in nature. | ||
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====Separation==== | ====Separation==== | ||
Unmarried spouses are separated when they begin to live "separate and apart" from each other, 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. | Unmarried spouses are separated when they begin to live "separate and apart" from each other, 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. | For unmarried spouses, separation is the end of their emotional and legal relationship with each other. Unmarried spouses do not need to get divorced. | ||
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*a surrogate mother ''is a parent'', unless everyone has signed an assisted reproduction that makes her not a parent. | *a surrogate mother ''is a parent'', unless everyone has signed an assisted reproduction that makes her not a parent. | ||
If you do the math, you'll see that under the ''Family Law Act'' a child can have up to five parents | If you do the math, you'll see that under the ''Family Law Act'' a child can have up to five parents. The act doesn't discriminate between parents who are intended parents and parents who are donors or surrogate mothers. In for a penny, in for a pound, as the saying goes: a parent under an assisted reproduction agreement is liable to pay child support just like every other parent, but is also presumed to be the guardian of a child under s. 39(3). | ||
===Caregivers and extended family relationships=== | ===Caregivers and extended family relationships=== | ||
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Other people can have a legal interest in a child in addition to people who are parents. Most of the time these people are extended family members who have had a parent-like relationship with a child, such as a grandparent, an aunt or an uncle, or even a much older sibling, but any adult who has had a parenting role in a child's life may have an interest in a child. | Other people can have a legal interest in a child in addition to people who are parents. Most of the time these people are extended family members who have had a parent-like relationship with a child, such as a grandparent, an aunt or an uncle, or even a much older sibling, but any adult who has had a parenting role in a child's life may have an interest in a child. | ||
This kind of legal interest plays out in one of two ways. Where a child's parents are doing a good enough job, an extended family member might want ''contact'' with the child if time with the child is being withheld. Section 59(2) of the ''Family Law Act'' says this: | This kind of legal interest plays out in one of two ways. Where a child's parents are doing a good enough job, an extended family member might want ''contact'' with the child, if time with the child is being withheld. Section 59(2) of the ''Family Law Act'' says this: | ||
<blockquote><tt>A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.</tt></blockquote> | <blockquote><tt>A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent.</tt></blockquote> | ||
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*apply for ''protection orders'' if they feel they are at risk of family violence. | *apply for ''protection orders'' if they feel they are at risk of family violence. | ||
The only legal differences between married spouses and unmarried spouses who have lived together for at least two years are that only married spouses must get a ''divorce'' to end their relationship with one another and only married spouses can ask the court for orders under the federal ''Divorce Act''. That's it. | The only legal differences between married spouses and unmarried spouses who have lived together for at least two years are that only married spouses must get a ''divorce'' to end their relationship with one another, and only married spouses can ask the court for orders under the federal ''Divorce Act''. That's it. | ||
The only legal difference between unmarried spouses who have lived together for at least two years and unmarried spouses who have lived together for less than two years is that couples who have lived together for less than two years aren't able to share in family property and family debt under the ''Family Law Act''. They may: | The only legal difference between unmarried spouses who have lived together for at least two years and unmarried spouses who have lived together for less than two years is that couples who have lived together for less than two years aren't able to share in family property and family debt under the ''Family Law Act''. They may: | ||
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*apply for ''protection orders'' if they feel they are at risk of family violence. | *apply for ''protection orders'' if they feel they are at risk of family violence. | ||
Like unmarried spouses who have lived together for less than two years, couples who are not spouses still share in property they jointly own and they can make claims to property owned only by one spouse under the law of trusts and the law of equity. | Like unmarried spouses who have lived together for less than two years, couples who are not spouses still share in property they jointly own, and they can make claims to property owned only by one spouse under the law of trusts and the law of equity. | ||
Couples who are not spouses, not parents and do not live together cannot apply for protection orders. | Couples who are not spouses, not parents, and do not live together cannot apply for protection orders. | ||
===Children's caregivers and extended family=== | ===Children's caregivers and extended family=== | ||
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It is not true that an unmarried couple is automatically "married" once they've lived together for a certain amount of time. A unmarried couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage." | It is not true that an unmarried couple is automatically "married" once they've lived together for a certain amount of time. A unmarried 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 | 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 licensed marriage commissioner. | ||
Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, as long as the marriages meet the criteria for valid marriages, discussed in the next | Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, as long as the marriages meet the criteria for valid marriages, discussed in the next section. If you want to undo the marriage, you'll have to get divorced just like every other person in a valid marriage, and that will usually mean waiting until one year has passed since your separation. An alcohol-induced Las Vegas marriage was upheld in the very funny 2005 Supreme Court case of ''[http://canlii.ca/t/1q47l Davison v. Sweeney]'', 2005 BCSC 757, 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"==== | ====Separation and the "legal separation"==== | ||
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To be crystal clear: | 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" | *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 | *there are no court documents 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. | *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. | To be separated, you just need to decide that your relationship is over and say so. | ||
The fact that a couple is separated isn't enough to let a separated spouse remarry. You must be formally divorced by an order of the court in order to remarry. If you remarry without being divorced from the first marriage, the new marriage will be invalid. | The fact that a married couple is separated isn't enough to let a separated spouse remarry. You must be formally divorced by an order of the court in order to remarry. If you 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 | On the other hand, the fact that you're separated won't stop you from having a new relationship, including a new relationship that would qualify as a spousal relationship. Technically, this is adultery, but no one except the Pope or your in-laws are likely to care. There's a lot more information about new relationships after separation in the [[Separation]] section. | ||
====Divorce and getting divorced==== | ====Divorce and getting divorced==== | ||
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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. | 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 "consummation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated 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 physical condition | The one exception to this last rule has to do with the "consummation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated 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 physical condition that makes sex impossible. | ||
===Unmarried spousal relationships=== | ===Unmarried spousal relationships=== | ||
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====The automatic marriage==== | ====The automatic marriage==== | ||
It is not true that a unmarried 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; an unmarried couple is never married unless there is an actual marriage ceremony performed by someone | It is not true that a unmarried 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; an unmarried couple is never married unless there is an actual marriage ceremony performed by someone licensed to perform marriages. | ||
====Applying for spousal status==== | ====Applying for spousal status==== | ||
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It is not true that you become unmarried spouses simply by living with someone for long enough. You must be living together in a "marriage-like relationship" to become unmarried spouses; mere roommates will not become spouses by accident. There wouldn't be any frat houses if this wasn't the case. | It is not true that you become unmarried spouses simply by living with someone for long enough. You must be living together in a "marriage-like relationship" to become unmarried spouses; mere roommates will not become spouses by accident. There wouldn't be any frat houses if this wasn't the case. | ||
Likewise, a dating couple won't become spouses if they have a child. They must also be living together in a "marriage-like relationship" | Likewise, a dating couple won't become spouses if they have a child. They must also be living together in a "marriage-like relationship." | ||
====Separation and the "legal separation"==== | ====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 unmarried 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. | 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 unmarried 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. | ||
====Getting divorced==== | ====Getting divorced==== | ||
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Unmarried 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. | Unmarried 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. | ||
== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||