Do Common-Law Partners Have the Same Rights as Married Spouses in BC?

If you are not married, you may wonder whether you have any claim to the home, the savings or support after a breakup. In British Columbia the answer is often yes, because the law looks at how you lived rather than at a marriage certificate.

There are still differences. This article walks through where unmarried partners are treated the same as married spouses, and where the rules are not identical. A lawyer can confirm how any of this applies to your situation.

This article covers the law of British Columbia.

The general rule: much is the same

The BC government says the Family Law Act may apply whether or not you were married, and that parenting, support and family-safety rules generally apply to both married and unmarried couples. It also says wills, estates and income tax already treat common-law and married families the same.

This was not always so. 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.

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. There is an exception: outside the property and pension division parts of the Act, a person who has lived in a marriage-like relationship for less than 2 years is still a spouse if they have a child with the other person. The relationship begins on the earlier of the date the couple began living together in a marriage-like relationship and the date of their marriage, and a spouse includes a former spouse.

Property and debt

Property division rules apply to unmarried couples who have lived together in a marriage-like relationship for at least two years. Spouses are generally equally entitled to and responsible for family property and family debt, and on separation each has a right to an undivided half interest in all family property as a tenant in common.

• Family property is property owned by at least one spouse, or in which one has a beneficial interest, on the date of separation.
• Property owned before the relationship, inheritances and gifts from third parties are generally excluded property.
• If you say property is excluded, you must prove it.
• The increase in value of excluded property since the relationship began, or since you acquired it if later, is shared, but the starting value is not.

The Supreme Court may order an unequal division if equal division would be significantly unfair. Couples can also opt out of these rules by agreement.

Spouses may be separated while still living in the same residence, and the court may treat one spouse communicating an intention to separate permanently, or acting on that intention, as evidence of separation. Spouses are not treated as having separated if, within one year after separating, they resume living together primarily to reconcile and live together for periods totalling at least 90 days.

Support, pensions and the home

If a spouse is entitled to spousal support, the other has a duty to provide it. Entitlement is decided after considering the section 161 objectives, and the amount is then set under section 162. The same test applies whether or not you married.

The objectives include recognizing economic advantages or disadvantages from the relationship, apportioning the financial consequences of child care, relieving economic hardship from the breakdown and, as far as practicable, promoting each spouse's economic self-sufficiency within a reasonable period. Amount and duration depend on each spouse's conditions, means, needs and other circumstances, including how long they lived together and the functions each performed.

Pension entitlements are family property, and a spouse's share is determined under Part 6, which is available only to spouses who meet the 2-year test. Couples with a child but under 2 years together can be spouses for support, but not for property or pension division.

The Supreme Court can also order one spouse exclusive occupation of the family residence for a specified period. That order is temporary and does not give a proprietary interest.

Where the rules are not the same

If a person dies without a will and leaves a spouse but no descendants, the whole intestate estate goes to the spouse. If there are descendants, the spouse's share depends on whether all of them are also the spouse's descendants.

Federal benefits and tax rules may define a partner differently from the Family Law Act, and those definitions can carry their own conditions. Confirm them with a lawyer or accountant before relying on them.

What to do next

• Work out your start-of-cohabitation and separation dates
• List what each of you owned before the relationship, with proof
• Find any written agreement about property or support, since it may affect your rights
• Keep track of the 2-year time limit that applies to you
• Ask a lawyer or accountant about any federal benefit or tax question

Frequently asked questions