No one likes to think about how things are going to end particularly when they are just starting out in a new relationship. But, by thinking and planning ahead now, a couple can make things easier in the future if things don’t work out. Whether moving in together or getting legally married, it is important to understand the legal rights of common law couples and married couples and how these rights are affected in the event of separation.
The provincial Family Law Act (FLA) is the one of the main pieces of legislation relating to family law issues in British Columbia. It applies to married spouses, unmarried spouses and people in other unmarried relationships. The term “common law” is not actually used nor formally defined in the legislation; the correct term is spouse. The FLA provides that couples who live together in a marriage-like relationship for a minimum of two years share the same legal rights as married spouses.
The FLA helps separated spouses to agree on property division, parenting arrangements, financial support and how guardians are appointed. There is one exception to the two-year minimum rule which applies when two people have lived together for less than two years, but have a child together. In this scenario, that spouse may have some of the rights afforded to married couples. The FLA sets out when one is considered a spouse for the purposes of spousal support as well as property division and even pension division in the event of separation.
Common law spouses are considered separated when at least one spouse wishes to end the relationship. Two people may be separated despite continuing to reside under the same roof. Separating spouses may disagree on how to divide assets and debts at the end of their relationship. One party may feel a proposed equal division is unfair and, if this is the case, they will need to provide reasons to the court as to why an equal division would be significantly unfair. Factors that may be considered by the court to determine unfairness of an equal division include:
- The relationship length;
- Prior agreements between the spouses;
- One spouse’s contributions to the other spouse’s career
- The reason any debts were incurred and the ability of each spouse to pay off the debt;
- Any other factor that may lead to significant unfairness.
Couples who have lived together less than two years may feel that they are entitled to the same rights as married spouses but, given the two-year cohabitation minimum, they have no automatic legal recourse. Separation can be fraught with emotion and conflict. Unmarried spouses entering into a common law relationship should consider putting a cohabitation agreement in place to protect each spouse’s interests in the event of separation in the future. Agreement during times of harmony will make things smoother down the road.
Married couples have the option to use either the FLA or the Divorce Act (updated in March 2021). Similar advice applies to couples who plan to legally marry: they should obtain a marriage agreement addressing how they will divide their assets, debts and pensions in the event of separation and divorce.
There is a two-year limitation period to commence claims for spousal support and property/debt division. For common law couples, this starts at the date of separation. For married couples, the limitation period starts at the date of divorce.
If you want to reduce conflicts and minimize negative impacts on your life and those close to you, we can help. Do consult with a lawyer to determine the best options.