Children Born to Unmarried Spouses (No. 147)

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Zahra H. Jimale, Jimale Law Corporation in May 2017.

A couple who lives together in a marriage-like relationship and has a child together are “spouses” under the law. Learn how this impacts child support and other family law issues.

Understand the legal framework

A child born to unmarried spouses

BC’s Family Law Act defines the term “spouse” as including married spouses as well as:

  • People who have lived together in a marriage-like relationship for at least two years.
  • People who have lived together in a marriage-like relationship for less than two years and have had a child together. (In this case, you aren’t considered a spouse when it comes to property, debt or pensions.)

A couple is seen as living in a “marriage-like relationship” if they present themselves as a family unit to family and friends, and conduct their financial and household affairs as a couple.

There is no legal difference in the status of a child born to someone who is a married spouse, an unmarried spouse, or not considered a spouse under the law.

Tip

“Common-law relationship” is the term many people use to describe unmarried couples who live together in a marriage-like relationship. But it’s not a term used in the Family Law Act or the Divorce Act. These laws just say spouse.

The child’s last name

The parents may choose any last name they like for a child, if they agree. Under BC law, if the parents do not agree on a last name for a child, the child’s last name will consist of the parents’ surnames hyphenated or combined in alphabetical order.

A parent can apply to legally change their child’s last name. They need the consent of all guardians of the child. If the parent wants to change the child’s name to their spouse’s last name, the spouse must also consent.

A child who is age 12 or over has to agree in writing to the legal change of their name.

An applicant for a name change can proceed without a required consent with the approval of the Vital Statistics Agency. For more on the name change process, see the Vital Statistics Agency’s website at gov.bc.ca/vitalstatistics, or call 250-952-2681 in Victoria, or toll-free 1-888-876-1633 elsewhere in BC.

An unmarried spouse’s obligation to pay child support

Child support is a right of the child. Each parent has a legal duty to provide support for their child. That is so whether the parents are married spouses, unmarried spouses, or not considered spouses.

The obligation to support a child lasts until the child reaches the age of majority, 19 in BC. The obligation may continue after the child reaches 19 if the child is financially dependent on the parent because of disability or illness, or because the child is pursuing post-secondary education.

For more on these responsibilities, see our information on child support (no. 117).

Tip

Even if you never lived with your child or child’s other parent, you still have a legal responsibility to contribute to your child’s support.

A stepparent’s obligation to pay child support for a stepchild

Under the law in BC, a stepparent is a person who is a spouse of the child's parent and lives with the child's parent and the child.

A stepparent may have a duty to provide support for a stepchild if:

  • the stepparent contributed to the support of the child for at least one year, and
  • a claim for child support is made against the stepparent within one year of their last contribution.

The stepparent's obligation to pay child support is secondary to that of the child's parents and guardians. When deciding if a stepparent should pay child support, a court looks at the child’s standard of living when they lived with the stepparent, and how long they lived together. A number of factors come into play, and it is a good idea to consult a lawyer if a stepparent is involved.

To find out more about child support on separation, see our information on child support (no. 117).

How the child is cared for if you break up

If you and your child’s other parent break up, you need to figure out how you will make decisions about the child, where the child is going to live, and how much time the child will spend with each parent.

If you can’t agree on these issues, you might consider mediation. Mediation is a process where the people in a conflict meet with a neutral person (a mediator), who helps them find a solution they agree on.

If you still can’t come to an agreement, one of you may decide to bring a court action. A judge will make a decision according to what’s in the best interests of the child. The court can also make decisions about how often the child will see each parent (called parenting time or contact) and how parenting decisions about the child will be made (called parental responsibilities). For more, see our information on custody and access, guardianship, parenting arrangements, and contact (no. 142).

Adoption and unmarried spouses

Unmarried spouses have the same rights as married spouses to adopt a child. For more on the adoption process, see our information on adoption (no. 145).

If you want to adopt your spouse’s child

You can adopt your spouse’s child from another relationship if the child’s other parent agrees.

When you adopt a child, you get all of the obligations of a parent of the child, including the obligation to pay child support and contribute to the cost of the child’s expenses.

A child who is age 12 or over must consent to being adopted.

Placing your child for adoption

Usually both birth parents have to agree to place a child for adoption. A birth mother’s consent to an adoption is required unless the child is in the permanent care of the child welfare authorities.

A biological father’s consent is usually required too, but there are exceptions. For example, a court can be asked to do away with the biological father’s consent if he can’t be located or if to do so is in the child’s best interests.

For more on the adoption process, see our information on adoption (no. 145).

Common questions

Can I use my spouse’s last name?

Yes. In fact, you can call yourself any name you choose, so long as you don’t do it to break the law or to cheat anyone. However you won’t be able to get government identification documents in any name other than your legal name. You can apply for a legal name change if you wish. For more on this process, see our information on changing your name (no. 161).

My ex-spouse is abusive. What if I am concerned for my child’s safety?

If you or your children are being threatened by a former spouse, you can apply for a protection order under the Family Law Act. This is a court order to protect one person from another.

A protection order can say your spouse must stay away from you and your children. It can restrain how your spouse communicates with you. If your spouse breaks this order, they can face criminal charges. For more on this process and other ways to stay safe, see our information on family violence (no. 155) and peace bonds (no. 217).

Get help

With custody

Family justice counsellors in Family Justice Centres throughout BC can help you with custody, child support, and related issues. Their services are free.

Telephone: 604-660-2421 in the Lower Mainland and 250-387-6121 in Victoria
Toll-free: 1-800-663-7867
Web: gov.bc.ca/familyjusticecentres

More information

Legal Services Society, the legal aid provider in BC, publishes the booklet “Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce”.

Web: legalaid.bc.ca

The Legal Services Society’s Family Law in BC website has information on common-law relationships.

Web: familylaw.lss.bc.ca

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

Web: wiki.clicklaw.bc.ca




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