Claiming Spousal Support After a Common-Law Separation in BC

After a common-law relationship ends, one partner is sometimes left in a much weaker financial position, perhaps after years of caring for children or supporting the other's career. British Columbia's Family Law Act allows spousal support claims by unmarried partners, but there are conditions and a time limit.

This article explains who qualifies, what a court considers, how agreements can affect a claim, and how long you have to apply.

This article covers the law of British Columbia.

Who qualifies as a spouse for support

Under the Family Law Act, a person is a spouse if 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, so a claim after separation is possible.

There is a shorter route. A person who has lived in a marriage-like relationship for less than 2 years is still a spouse outside the property and pension division parts of the Act if they have a child with the other person. The provincial government confirms spousal support can apply sooner than property division.

You can be separated while still living in the same home. The court may treat one spouse communicating an intention to separate permanently, or an action showing it, as evidence of separation.

What a court considers

If a spouse is entitled to spousal support, the other spouse has a duty to provide it. Entitlement is decided after considering the objectives in s. 161, and the amount is then determined under s. 162. The objectives are:

• To recognize economic advantages or disadvantages to the spouses from the relationship.
• To apportion between the spouses the financial consequences of child care.
• To relieve economic hardship caused by the breakdown of the relationship.
• As far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period.

Amount and duration depend on each spouse's conditions, means, needs and other circumstances, including how long they lived together, the functions each performed while together, and any agreement or order about support. Because these factors turn on each couple's own situation, outcomes depend on the facts. A lawyer can help you gauge what is realistic.

Agreements that release support

A spouse may 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 under s. 164. It can be set aside for reasons such as non-disclosure of income, property or debts, or if it is significantly unfair.

If you signed a cohabitation or separation agreement, have a lawyer read it before assuming you can or cannot claim.

The time limit to apply

An application for spousal support, as well as property or pension division, must generally be made within 2 years. For unmarried spouses the 2 years run from the date they separated. The period is suspended while the spouses are in family dispute resolution or a prescribed process.

Courts may extend the period in some cases, but do not count on it. If you are close to the deadline, get advice promptly. Be careful with the date of separation too: if you resumed living together primarily to reconcile for periods totalling at least 90 days within one year after separating, you are not treated as having separated.

What to do next

• Confirm how long you lived together in a marriage-like relationship, and whether you have a child together.
• Record your separation date and anything that shows it, such as messages stating an intention to separate.
• Gather income records, tax returns and expense information for both of you if you can.
• Note who cared for children or gave up work or study during the relationship.
• Find any signed agreement about support.
• Diarize the 2-year deadline and speak to a lawyer well before it.

Frequently asked questions