Common-Law Property Claim Deadline in British Columbia After Separation

If your common-law relationship has ended in British Columbia, one of the first questions is how long you have to make a claim. The answer depends on whether you count as a spouse, and on the date your relationship is treated as having ended.

This article walks through who qualifies, when the 2-year clock starts, how dates are counted, what you could lose if the deadline passes, and what people commonly do to protect a claim. It is general information, not advice on your situation.

This article covers the law of British Columbia.

Who can claim property and pension division

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 have lived together in a marriage-like relationship for at least two years, and couples can opt out of these rules by agreement.

A child together does not change this for property. A couple who lived together for less than 2 years can still be spouses if they have a child together, but only outside the property division and pension division parts of the Act. Pension division is likewise limited to spouses who meet the 2-year test.

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

The 2-year deadline and when it starts

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 they separated. For married spouses, the 2 years instead run from the date a divorce judgment is granted or a nullity order is made.

The same limit applies to spousal support claims, not only to property and pensions. The period is suspended while the spouses are in family dispute resolution or a prescribed process. Courts may extend the deadline in some cases, but whether that is possible depends on the facts, so do not plan around it.

How the relationship dates are counted

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 you reach 2 years, the relationship is counted from the start of living together, not from day 731.

You can be separated while still living in the same home. A court may treat as evidence of separation one spouse communicating an intention to separate permanently, or an action showing that intention. The Act does not set a fixed list of proof, so courts look at the evidence case by case. Since your separation date starts the clock, it helps to know what date you would point to and why.

Getting back together can affect the date. 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. If that applies to you, the separation date may be different from the one you first had in mind.

What a claim made within the deadline can cover

On separation, each spouse generally has a right to an undivided half interest in all family property, held as a tenant in common. Family property includes shares, business interests, tax refunds, bank account money, annuities and pension entitlements.

• Half of family property and responsibility for family debt, generally on an equal basis.
• A share of the increase in value of excluded property, such as a house owned before the relationship. The increase is shared, but the starting value is not.
• A share of pension entitlements, which are family property, with the pension share worked out under Part 6.
• Spousal support, which also falls under the same 2-year limit.

Excluded property includes property acquired before the relationship, inheritances and gifts from third parties. A spouse who says property is excluded must prove it. Property division, pension division and spousal support applications are the ones the 2-year limit applies to. What happens to a claim once that time has passed depends on your situation, so it is worth confirming with a lawyer early.

What to do next

There are steps people commonly take to protect a claim before time runs short. A spouse can ask the Supreme Court to restrain the other spouse from disposing of property that is at issue. Spouses may also make a written agreement dividing property and debt equally or unequally. A witnessed written agreement can be set aside only on listed grounds, such as a spouse failing to disclose significant property or debts.

• Write down the date you believe you separated, and what happened that shows it.
• Note the date you began living together in a marriage-like relationship.
• Record any period of getting back together, with the dates you lived together.
• Gather statements for bank accounts, pensions, investments, property and debts.
• Keep records of any family dispute resolution, including start and end dates.
• Calendar the 2-year date from separation, and leave yourself a margin.
• Speak to a family lawyer before signing any agreement that releases claims.

Because the deadline, the separation date and any pause for dispute resolution all depend on your facts, a lawyer can confirm your dates.

Frequently asked questions