Common-Law vs Married Rights in British Columbia: What Is the Same?

If you are living with a partner without being married, you may have heard that "common-law" gives you the same rights as marriage. That is partly true in British Columbia, but not completely.

The Family Law Act treats many things the same, yet a few important points work differently. Knowing which is which helps you plan, and decide whether a written agreement makes sense.

This article covers the law of British Columbia.

What is treated the same

The Family Law Act may apply whether or not you were married, and its parenting, support and family-safety rules generally apply to both married and unmarried couples.

A person is a spouse under the Family Law Act 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. Once that threshold is met, the relationship is counted from the start of living together, not from the end of the two years. A spouse also includes a former spouse.

• Property: spouses are generally equally entitled to and responsible for family property and family debt. These rules apply to unmarried couples who have lived together in a marriage-like relationship for at least two years.
• Spousal support: if a spouse is entitled to spousal support, the other spouse has a duty to provide it.
• Wills, estates and income tax already treat common-law and married families the same.
• Intestacy: a spouse is someone who was married or lived in a marriage-like relationship for at least two years, so a person who dies without a will and leaves a qualifying spouse but no descendants leaves the whole estate to that spouse.

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.

What is different

• Divorce: the Divorce Act applies to married spouses. Unmarried spouses do not need a divorce and resolve property, support and parenting under the Family Law Act.
• Time limits: 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 of separation, while for married spouses they run from the date a divorce judgment is granted or a nullity order is made.
• Short relationships with a child: a couple who lived together less than 2 years can be spouses for support and parenting if they have a child together, but not for property or pension division.
• Proof: unmarried couples may need to show that the relationship was marriage-like and how long it lasted, because courts assess the evidence case by case.

Separation matters because family property is property owned by at least one spouse, or in which at least one spouse has a beneficial interest, on the date of separation. Spouses may be separated while still living in the same residence. However, 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. Pension division is available only to spouses who meet the 2-year test, and a child together is not enough.

Some federal benefits and programs have their own definitions of a partner. Those rules are separate from the Family Law Act, so check the specific program or ask a lawyer or accountant.

Quick comparison

Agreements can change the default rules

Couples can opt out of the property rules by agreement. Spouses may make agreements dividing property and debt equally or unequally.

A spouse may also agree in writing to release the other from spousal support. Where a witnessed written agreement exists, the court may not order spousal support unless the agreement is first set aside, which can happen for reasons such as non-disclosure of income, property or debts, or if it is significantly unfair.

If you separate and need to stay in the family home, the Supreme Court may order a spouse exclusive occupation of the family residence for a specified period, but the order is temporary and does not give a proprietary interest.

Because these agreements can limit your rights, get legal advice before you sign one.

What to do next

• Confirm when you began living together in a marriage-like relationship.
• Check whether you have any written agreement with your partner.
• Note your separation date if the relationship has ended, and watch the 2-year time limit.
• List your property, debts and pensions.
• Ask a lawyer or accountant about any federal benefit that matters to you.

Frequently asked questions