Can I Be Common-Law With Someone Still Married in BC?

You may be living with someone who is separated but not yet divorced. Then a practical question comes up: does BC law see you as a spouse, and what does that mean for the person still legally married to them?

The short answer is that the Family Law Act looks at how people live, not only at paperwork. This article explains the main rules, where they overlap, and where the answer depends on facts a lawyer should review.

This article covers the law of British Columbia.

How BC defines a spouse

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. The Act also says a spouse includes a former spouse.

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.

Does an existing marriage get in the way?

The test looks to living in a marriage-like relationship rather than to being free to marry. That wording suggests a person can be a spouse under the Family Law Act even while still legally married to someone else, and the 2-year period must be continuous. This is a reading of the wording rather than a quoted rule, so a lawyer should confirm how courts have applied it to your situation.

The result can be that more than one person has a claim: the legal spouse and a new partner. Which claims succeed depends on dates, how each relationship ended or continued, and the evidence.

What it can mean for support, property and estates

• Property and pension division: these rules apply to unmarried couples who have lived together in a marriage-like relationship for at least two years. Part 6 pension division needs the 2-year test to be met.
• Spousal support: a couple together less than 2 years can still be spouses outside Parts 5 and 6 if they have a child together.
• Time limits: applications for property division, pension division or spousal support must generally be made within 2 years. For married spouses the clock runs from the divorce judgment or nullity order, not from separation.
• Death without a will: if two or more people qualify as the deceased's spouse, they divide the spousal share as they agree, and the court decides if they cannot agree. This can arise where a legal spouse and a common-law partner both claim.

If a spouse is entitled to spousal support, the other spouse has a duty to provide it, and the amount and duration depend on each spouse's conditions, means, needs and other circumstances, including how long they lived together.

If a person dies without a will leaving 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.

When the relationship began matters

A relationship begins on the earlier of the date the spouses began living together in a marriage-like relationship and the date of their marriage. Once the 2-year threshold is met, it is counted from the start of cohabitation.

Family property is generally property owned by at least one spouse, or in which one has a beneficial interest, on the date of separation. Property acquired before the relationship began is excluded, but the increase in its value since the relationship began is shared.

Separation, sharing and agreements

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 an action showing 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.

• Equal sharing: spouses are generally equally entitled to and responsible for family property and family debt.
• Excluded property: a spouse who claims that property is excluded, such as an inheritance or property owned before the relationship, must prove it.
• Agreements: spouses may make agreements dividing property and debt equally or unequally.
• Unequal division: the Supreme Court may order an unequal division of family property or debt if equal division would be significantly unfair.
• Staying in the 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.

What to do next

• Write down the date you began living together and any breaks in living together.
• Gather proof of shared life, such as leases, shared bills and joint accounts.
• Note the date the other person separated from their legal spouse, if known.
• Keep track of the 2-year time limits, which can be suspended during family dispute resolution.
• Speak with a family lawyer before relying on any assumption about competing spousal claims.

Frequently asked questions