Do Common-Law Couples Split Property After Less Than 2 Years in BC?

You and your partner lived together, but it did not last as long as you hoped. Now you are separating and wondering whether the home, savings, and debts get divided the way they would for a married couple. In British Columbia, the answer often turns on whether you reached the 2-year mark.

This article explains how the Family Law Act counts that time, why your separation date matters, and what a child together does and does not change. It also covers agreements that opt out of the rules and the time limit to apply. Every situation is different, so a lawyer can confirm how this applies to you.

This article covers the law of British Columbia.

The 2-year rule for property 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.

Pension division works the same way. Part 6 pension division is available only to spouses who meet the 2-year test, and a child together is not enough.

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.

What a child together changes (and what it does not)

If you lived together in a marriage-like relationship for less than 2 years but have a child together, you are still a spouse outside Parts 5 and 6. That means a child can bring you within the rules on support and parenting, but not property or pension division.

Spousal support can therefore apply to a couple who lived together less than 2 years if they have a child together. Whether support is actually owed depends on the objectives and circumstances the Act sets out, including how long you lived together and the roles each of you played.

How the 2 years is counted

The 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, the relationship is counted from the start of living together, not from day 731.

The 2 years must be continuous. The Act does not list a fixed set of proof factors for a marriage-like relationship, so courts look at the evidence case by case.

• Gather evidence of when you began living together, such as leases, utility bills, and mail.
• Note when the relationship ended and how that was communicated.
• Keep records of who paid for what and who owns what.

Why the separation date matters

Spouses may be separated while still living in the same residence. The court may treat as evidence of separation one spouse communicating an intention to separate permanently, or an action showing that intention. If you are close to the 2-year mark, that date can decide whether the property rules apply.

A short reconciliation has limits. 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 you tried again, talk to a lawyer about how that may affect your dates.

Opting out, and the time limit to apply

Couples can opt out of these property rules by agreement. Spouses may 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.

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, and the period is suspended while the spouses are in family dispute resolution or a prescribed process. For married spouses, the limit instead runs from the date a divorce judgment is granted or a nullity order is made. Courts may extend the period in some cases, but do not count on it.

• Write down the date you moved in together and the date you separated.
• Check whether you have a child together.
• Look for any written agreement about property or support.
• Note the date 2 years after separation and speak to a lawyer well before it.

What to do next

Start by pinning down your dates, because they decide which rules apply. Collect documents showing when you began living together and when you separated, and any agreement you signed.

Then get legal advice early, especially if you are near the 2-year mark, have a child together, or are unsure when you separated. A lawyer can confirm how the rules apply to your facts and what deadlines are running.

Frequently asked questions