How Long Do Common-Law Partners Have to Claim Property in BC?

If you and your partner lived together without marrying and the relationship has ended, one of the first questions is how long you have to deal with the house, savings and pensions. In British Columbia, a time limit applies, and it can start running before you realize it.

This article explains who can claim property as a common-law partner, how the 2-year limit works, why the separation date matters so much, and what you can do to protect yourself while you sort things out.

This article covers the law of British Columbia.

The basic deadline for unmarried spouses

An application for property division, pension division or spousal support must generally be made within 2 years under section 198(2) of the Family Law Act. For unmarried spouses, those 2 years run from the date they separated.

Married spouses have a different starting point. For them, the 2 years run from the date a divorce judgment is granted or a nullity order is made, not from separation.

Who can claim property as a common-law partner

Property division rules apply to unmarried couples who have lived together in a marriage-like relationship for at least two years. The Family Law Act describes a spouse as someone who is married or who has lived in a marriage-like relationship for a continuous period of at least 2 years.

Having a child together is treated differently. A couple who lived together for less than 2 years are still spouses if they have a child together, but only outside the property and pension parts of the Act. So a child can make someone a spouse for support and parenting matters, but not for property or pension division.

The relationship is counted from the day you began living together in a marriage-like relationship, or the wedding date if earlier. Once you pass the 2-year mark, the time is counted from the start of living together, not from day 731.

This is a fairly recent right. Before 2013, unmarried couples could not ask a court to divide property under the family property legislation, however long they had lived together. Couples can also opt out of these rules by agreement.

Why the separation date matters

Because the clock starts at separation for unmarried spouses, the date you separated can decide whether you are in time. Spouses may be separated even while they still live in the same home.

The court may treat as evidence of separation one spouse communicating an intention to separate permanently, or an action that shows that intention. Courts look at the evidence case by case.

There is an exception for reconciliation. 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.

• Write down when and how you told your partner the relationship was over.
• Keep messages, emails or notes that show when either of you decided to separate permanently.
• Note any period when you lived together again, and why.

Pausing the clock during mediation

The 2-year period is suspended while the spouses are in family dispute resolution or a prescribed process. Mediation is a common example of family dispute resolution.

Be careful about assuming how much time is left afterward. What counts as being in a process, and exactly when it starts and ends, can depend on the facts, so keep records of dates and ask a lawyer to confirm.

Protecting property and other ways to settle

While a dispute is unresolved, a spouse can ask the Supreme Court to restrain the other spouse from disposing of property that is at issue. The court can also order an interim distribution of family property in some cases.

You do not have to go to court. Spouses may make agreements dividing property and debt equally or unequally. The 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.

If you also need spousal support, the same section 198 time limit applies. A couple who lived together for less than 2 years can be spouses for support if they have a child together. Spousal support has its own article in this library.

What to do next

Whether the deadline can be extended depends on your situation, and it is not something to count on. Get advice early, ideally well before the 2 years are close to running out.

• Work out your separation date and gather the evidence for it.
• Write down when you started living together in a marriage-like relationship.
• List property, debts and pensions, and when each was acquired.
• Keep records of any mediation or family dispute resolution, including dates.
• Ask a lawyer whether you need an order to restrain disposal of property or a written agreement.

Frequently asked questions