|
|
| Line 1: |
Line 1: |
| {{REVIEWEDPLS | reviewer = Thomas E. Wallwork|date= August 2017}} {{Dial-A-Law TOC|expanded = relationships}} | | {{REVIEWED LSLAP | date= August 12, 2021}} |
| Not all couples who live together meet the definition of spouse under BC’s family law. Those who aren’t considered spouses have some rights but not others. Learn what happens if you’re in an unmarried relationship that ends.
| | {{LSLAP Manual TOC|expanded = family}} |
|
| |
|
| {{PLSStorybox
| | == A. Family Law Act == |
| | image = [[File:Serena.png|link=]]
| |
| | text = “My partner and I lived together for 17 months before we ended our relationship. We had bought a place together. It was only in my partner’s name, as was the mortgage. I thought I was automatically going to get half the property. But because we lived together for less than two years, that’s not the case. I have a harder path to asking a court for a share of the property."<br>
| |
| – Serena, Kimberley, BC
| |
| }}
| |
|
| |
|
| ==What you should know==
| | Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act. |
|
| |
|
| ===Who a spouse is===
| | Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court. |
| There are two main laws that define who a '''spouse''' is. [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html The federal ''Divorce Act''] defines a spouse as either of two people who are '''married''' to each other.
| |
|
| |
|
| [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth BC’s ''Family Law Act''] expands the definition. Here, the term spouse also includes:
| | There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection |
|
| |
|
| * people who have lived together in a marriage-like relationship for at least '''two years''', and
| | Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)). |
| * people who have lived together in a marriage-like relationship for less than two years and have had a '''child together''' (in this case, though, you '''aren’t''' considered a spouse when it comes to property, debt or pensions; we explain what this means shortly).
| |
|
| |
|
| A couple is living in a '''marriage-like relationship''' if they present themselves as a couple to family and friends, and carry out their financial and household affairs as a couple.
| | Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued. |
|
| |
|
| This information is for couples who are '''not spouses''' under BC’s family law. For example, you may have lived together in a marriage-like relationship for '''less than two years''' (and not had a child together). Or you have a child together but have never lived together.
| | == A. Divorce Act == |
|
| |
|
| ===Your rights to support===
| | Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes. |
| Support is money paid by one parent or guardian to another, or one spouse to the other, for financial help after a relationship ends.
| |
|
| |
|
| ====Child support====
| | Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse. |
| Under BC law, each parent and guardian of a child has a duty to financially support the child. It doesn’t matter if the parents of a child have ever lived together. Generally, you can ask for child support from the other person as long as they’re a parent of the child under BC law. The other parent must pay child support for that child under the Child Support Guidelines.
| |
|
| |
|
| To learn more, [[Child Support (No. 117)|see our information on child support]].
| | Under the amended Divorce Act, family violence is a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA). |
|
| |
|
| ====Spousal support====
| | {{LSLAP Manual Navbox|type=chapters1-7}} |
| A person who’s a spouse under the BC ''Family Law Act'' is eligible to apply for spousal support. (See “Who a spouse is” above). Someone who isn’t a “spouse” under BC family law cannot apply for spousal support.
| |
| | |
| To learn more, [[Spousal Support (No. 123)|see our information on spousal support]].
| |
| | |
| ===Your rights to property acquired during the relationship===
| |
| Property division is one of the areas in which being a spouse under the ''Family Law Act'' makes a difference. Under the Act, '''spouses''' are presumed to:
| |
| | |
| * keep the property each of them brought into their relationship
| |
| * keep certain other property such as inheritances and gifts from someone other than your spouse
| |
| * share the other things they acquired during their relationship, no matter who bought it (called '''family property''')
| |
| | |
| Only spouses who are '''married''' or who’ve lived together in a marriage-like relationship for ''at least two years'' share an interest in family property. If you’re in a relationship that doesn’t meet this definition of spouse, you’re only allowed to keep the property you brought into the relationship.
| |
| | |
| If you own property together (jointly) — such as a house, a car, or bank accounts — you’re each presumed to have an equal interest in that joint property.
| |
| | |
| If you contributed to the purchase of an asset owned by your partner, or paid more for the purchase of a joint asset than your partner, you may be able to get out what you put in. But you’ll have to prove your contributions to the purchase. And you’ll have to show that you didn’t mean for your extra contributions to be a gift.
| |
| | |
| To learn more, [[Dividing Property and Debts|see our information on dividing property and debt]].
| |
| | |
| Because the law in this area is complex, you should get legal advice.
| |
| | |
| ===Your rights to property based on unjust enrichment===
| |
| If you contributed in some way to the assets owned by your partner, you may be entitled to a share of that property based on '''unjust enrichment'''. To claim an interest in your partner’s property, you must show three things:
| |
| | |
| * your partner gained '''a benefit''' from your contributions,
| |
| * you suffered '''a loss''' as a result of making those contributions, and
| |
| * there’s '''no legal reason''' why your partner should have received the benefit of your contributions at the cost of your loss.
| |
| | |
| If you can prove these things, a court may agree your partner was '''unjustly enriched''' by your contributions, and that you should be compensated for your loss. The court can order that your partner compensate you. If your partner can’t afford to make the payment, the court may impose a trust, called a '''constructive trust''', on their property. Then you can be paid the compensation you’re owed.
| |
| | |
| The law in this area is complex and it’s highly advisable to seek legal advice.
| |
| | |
| ===Responsibility for debts===
| |
| If you sign for a loan, it’s your loan and your responsibility — not your partner’s. Likewise, if your partner signs for a loan, it’s their responsibility. But if you both sign for a loan, you are both responsible to repay the debt.
| |
| | |
| If you '''guarantee''' (promise to pay) your partner’s loan, and your partner is unable to make the payments (or refuses to), you’re responsible. That’s true even though you may have had no benefit from the loan. If you end up paying some or all of the loan, you can ask your partner to pay you back.
| |
| | |
| ===Getting income assistance===
| |
| The BC government gives income assistance to those who need financial help.
| |
| | |
| As soon as you start living with someone else, the income assistance office may treat you like spouses. When you apply for income assistance, your caseworker will look at what income and assets you both have.
| |
| | |
| [https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-40/latest/sbc-2002-c-40.html#sec1.1_smooth Under BC’s income assistance law], '''spouse''' includes people living together for at least the last '''12 months''' in a row. The income assistance caseworker must believe that, like a marriage-like relationship, your relationship shows:
| |
| | |
| * financial dependence or interdependence, and
| |
| * social and familial interdependence.
| |
| | |
| If you meet this definition and qualify for income assistance, you’ll get it at the rate for a couple or family — not as two single people.
| |
| | |
| You have the right to challenge the decision of the income assistance office. For step-by-step guidance, [[Income Assistance: Reconsiderations and Appeals|see our information on income assistance reconsiderations and appeals]].
| |
| | |
| If you claim income assistance as a single person when you’re actually living with someone else as a couple, you:
| |
| | |
| * may have to pay back any benefits you’ve received,
| |
| * may face a civil court case or even criminal charges, and
| |
| * could be refused future services by the Ministry of Social Development and Poverty Reduction.
| |
| | |
| ===Getting benefits under a pension plan===
| |
| '''Old Age Security''' provides Canadian residents with a monthly pension beginning at age 65. People between age 60 and 64 whose spouse qualifies for a low-income pension supplement can receive an allowance benefit. To qualify for the '''allowance''' as a spouse, you need to be living together for '''one year'''.
| |
| | |
| The '''Canada Pension Plan''' allows pension credits earned during a marriage-like relationship to be divided. This is true as long as spouses have lived together for at least one year and an application is made within four years of the separation date.
| |
| | |
| Private pension plans generally don’t provide benefits for people who aren’t spouses.
| |
| | |
| ===Getting employment insurance benefits===
| |
| The federal government provides '''employment ensurance (EI) benefits''' to workers who lose their job. You may be eligible for EI benefits if you leave a job to follow your partner to a new place. Employment insurance defines a couple as '''spouses''' if they’ve lived together in a “conjugal relationship” for at least '''12 months''' in a row.
| |
| | |
| You can also get EI benefits if you leave your job to follow your partner if you’re:
| |
| | |
| * expecting the birth of a child, or
| |
| * caring for an immediate family member.
| |
| | |
| Note that you won’t qualify for benefits if the government concludes there were reasonable ways you could have kept your job. These might include requesting a transfer or commuting from the new place of residence.
| |
| | |
| ===Coverage under your partner’s medical and dental plans===
| |
| The BC Medical Services Plan covers people who live together in a marriage-like relationship. There’s no requirement about how long you must be living together.
| |
| | |
| Medical or dental plans or employers’ extended health plans generally don’t provide benefits for people who aren’t spouses.
| |
| | |
| ==Common questions==
| |
| | |
| ===Will I have to go to court?===
| |
| If you separate, you may have to go to court to sort out some of your support and property rights. BC Provincial (Family) Court can help you deal with support for you and your children, plus guardianship, parenting arrangements, and contact. Family Court can’t deal with property issues. It also can’t make orders about who will live in the family home. For these issues, you’ll have to go to the BC Supreme Court.
| |
| | |
| For more on going to court, [[Provincial (Family) Court|see our information on Family Court]].
| |
| | |
| {| class="wikitable"
| |
| |align="left"|'''Tip'''
| |
| You may be able to deal with some or all of your family law issues outside of court through '''mediation'''. You can try contacting a '''family justice counsellor'''. They are mediators who are specially trained to help families with guardianship, parenting, child support, and other family law issues. [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors See the BC government website to learn more].
| |
| |}
| |
| | |
| ===Do I need to make a will?===
| |
| If you want to make sure your partner and children are taken care of after your death, you need to make a '''will'''. In it, you can say who you want your property to go to. You can also name a guardian. They’ll be legally responsible for your children after you and your partner die.
| |
| | |
| For more, [[Preparing a Will|see our information on preparing a will]] and [[When Someone Dies Without a Will|when someone dies without a will]].
| |
| | |
| ==Who can help==
| |
| | |
| ===With more information===
| |
| The wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, has information on unmarried relationships.
| |
| | |
| [[https://wiki.clicklaw.bc.ca/index.php/Other_Unmarried_Relationships|Visit website]]
| |
| | |
| '''Legal Aid BC''' has information about family law basics in its booklet ''Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce''.
| |
| | |
| [https://legalaid.bc.ca/publications/pub/living-together-or-living-apart Visit website]
| |
| | |
| ===Free and low-cost legal help===
| |
| Options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
| |
| | |
| {{Dial-A-Law_Navbox|type=families}} | |
| {{Dial-A-Law Copyright}}
| |
