Can a Common-Law Partner Claim Part of a Pension in BC?

You and your partner never married, and now you are separating. One of you has a workplace pension, and you want to know whether the other can claim part of it. The answer in British Columbia often turns on how long you lived together.

This article explains when pension division applies to common-law couples, what part of a pension is shared, how a share is actually taken, and the deadline to act. Every pension and every relationship is different, so a lawyer can confirm how this applies to you.

This article covers the law of British Columbia.

Pensions are family property, but only for some couples

Family property includes pension entitlements, along with things like shares, business interests and bank account money. A spouse's share of pension benefits is determined under Part 6 of the Family Law Act.

Under the Family Law Act, a person is a spouse if they are married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. Property division rules apply to unmarried couples who meet that two-year mark, and couples can opt out of these rules by agreement.

Before 2013, unmarried couples could not ask a court to divide property under the family property legislation, however long they had lived together. Since the Family Law Act, qualifying common-law couples can.

A child together does not unlock pension division

If you lived together for less than 2 years but have a child together, you are still a spouse outside Parts 5 and 6. That can matter for support and parenting. It does not help with property or pension division.

Part 6 pension division is available only to spouses who meet the 2-year test, and a child together is not enough. The 2 years must be continuous.

What part of the pension is shared

A relationship begins on the earlier of the date you began living together in a marriage-like relationship and the date of your marriage. Once the 2-year threshold is met, it is counted from the start of cohabitation, not from day 731.

Property a spouse acquired before the relationship began is excluded property, and a spouse who claims property is excluded must prove it. For a pension earned before you moved in together, the growth in value since the relationship began is family property, but the starting value is not. Spouses are generally equally entitled to family property.

• Gather pension statements showing the value around the date you began living together.
• Gather statements showing the value around the date you separated.
• Collect proof of when you moved in together, such as leases, bills or tax records.

How a share is taken

The method depends on the type of plan. For a defined contribution account, a spouse may give notice to have their share transferred to their own credit.

For benefit-formula plans before the pension starts, the spouse may become a limited member and take a separate pension, or receive a transfer of commuted value, but only if the plan allows it.

Part 6 also covers division of benefits after a pension has started, LIRAs and LIFs, the death of a member or limited member, and waiving division. These situations have their own rules, so they are worth reviewing with a lawyer.

Spouses may also make agreements dividing property and debt equally or unequally. A court can set aside a witnessed written agreement only on listed grounds, such as a spouse failing to disclose significant property or debts or not understanding the agreement.

Deadlines, unequal division and next steps

An application for property division, pension division or spousal support must generally be made within 2 years. For unmarried spouses, the 2 years run from the date you separated, and the period is suspended while you are in family dispute resolution or a prescribed process. For married spouses, it runs from the date a divorce judgment is granted or a nullity order is made.

Spouses may be separated while still living in the same home. If you separate and then resume living together primarily to reconcile for periods totalling at least 90 days within one year, you are not treated as having separated.

The Supreme Court may order an unequal division of family property if equal division would be significantly unfair. It considers factors such as the length of the relationship and the terms of any agreement.

• Write down your move-in date and your separation date.
• Request current pension statements and plan details.
• Note the deadline and mark it in your calendar.
• Check for any written agreement about property or pensions.
• Speak with a lawyer before signing anything or missing a deadline.

Frequently asked questions