The unmarried (common-law) spouses and the Family Law Act (BC), 2013

With coming into effect on March 18, 2013 of the new Family Law Act (the FLA) replacing the old Family Relations Act (the FRA) the BC’s common law couples are now treated the same as married couples for the purposes of property division should they decide to part ways.

Section 3 (1) of the said Act stipulates that: “A person is a spouse for the purpose of this Act if the person … (b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years, or (ii) … has a child with the other person (parents considered spouses except parts of FLA relating to property division and pension division). Section 3 (2) A spouse includes a former spouse. Section 3 (3) A relationship between spouses begins on the earlier of the following: (a) the date on which they began to live together in a marriage-like relationship, or (b) the date of their marriage.”

Under the FRA spousal support provisions applied to common law couples, but property and pension division provisions did not. Therefore, common law spouses had to rely on constructive trust claims to resolve their property division claims, which were complex and often very expensive. In the past, people who had been living together for decades were not entitled to share in assets accrued during the relationship.

Under the FLA, a spousal relationship begins either on the day a couple gets married, or on the day they moved in together – whichever comes first.

Couples who have been living together for two years share the same legal rights as married couples, including a 50/50 split of the accumulated debts and assets, excluding any pre-relationship property, inheritances and gifts that each may have brought in to the relationship.

In terms of the support for the common-law spouse following the separation the claim for spousal support must be made within two years of the separation. The court will look at whether one spouse needs to be financially supported and whether the other spouse has the ability to pay. If both spouses are employed and earning a similar amount of money, the court will generally not order one spouse to support the other.

Now, importantly, under the FLA if spouses do not wish to have the property division rules to apply to them, they can simply choose to opt out and make different arrangements through a written family law agreement. In this way, there is a lot more emphasis on parties governing their own affairs and limiting the ability of judges to interfere with the terms of their written agreement. A judge may, however, interfere with the agreement in a few circumstances such as: where one party has not properly disclosed his/her assets; a party took advantage of the other party in some way; or other circumstances, under the common law, that would cause all or part of a contract to be voidable.

By giving equal emphasis to agreements and court orders, the new Act (the FLA) places an emphasis on out-of-court resolution and encourages people to settle their family law matters without having to go before a judge.

Please note that the above is for informational purposes only and is not intended to provide you with legal advice.

As with any other legal matter it is always advisable to talk to your lawyer.