Unmarried Spouses

The provincial Family Relations Act defines "spouse" as including married spouses and unmarried couples, providing that the unmarried couple has lived together in a "marriage-like relationship" for at least two years. As the federal Divorce Act only applies to married couples, the only rules that apply when unmarried relationships end are set out in the Family Relations Act and in the common law, usually the law of trusts.

This chapter provides a brief overview of what it means to be in a common-law relationship, and looks at how the issues of spousal support, children and child support, and assets and debts are usually dealt with. This chapter also discusses common-law spouses' entitlement to government benefits.

This chapter only covers the legal issues that come up when common-law relationships end. The Marriage & Divorce > Separating Emotionally chapter talks about the emotional issues that come up at the end of a long-term relationship and how those issues can impact on the resolution of the legal issues.

I. Introduction

(Incidentally, the law in British Columbia doesn't talk about people who are common-law spouses and never has. Once upon a time, people could marry each other and create a legal relationship simply by agreeing to marry, without getting a licence from the government or having a particular kind of ceremony. Because the rights between the spouses came from common law principles, these were known as common-law marriages. Common-law marriages were valid in England until the Marriage Act of 1753, better known by its full flowery name, An Act for the Better Preventing of Clandestine Marriage. Please don't use this term. It doesn't mean what most people think it means and is two and a half centuries out of date.)

The Family Relations Act defines "spouse" as including unmarried people who have cohabited for at least two years in a marriage-like relationship as well as legally married spouses. The Family Relations Act doesn't talk about common-law relationships, just about who is a spouse and who isn't, but for our purposes qualifying as a spouse is about as good a definition of a common-law relationship as any.

The most important thing to understand about "being common-law" is that it means nothing more than qualifying as a spouse for the purposes of a specific piece of legislation, and that's it. Being in a common-law relationship means only that your relationship is such that you qualify for a particular benefit or a particular obligation under the terms of a particular statute. As a result, the real question about whether you are in a common-law relationship is "do I qualify as a spouse for the purpose of _________ legislation?," and whether you qualify or not will change from statute to statute.

As a result, while married couples are always married spouses, common-law couples aren't always common-law spouses. For example, the federal Income Tax Act defines "spouse" as including people who have cohabited for one year, while the the provincial Employment and Assistance Act defined "spouse" as including people living together for three months if the welfare case worker believed that their relationship demonstrated "financial dependence or interdependence, and social and familial interdependence." These are the general rules:

Federal Laws: Common-law couples are normally concerned with federal legislation because of benefits which are administered by the federal government, such as the Canada Pension Plan. Federal legislation often distinguishes between spouses, people who are legally married, and common-law partners, who aren't. Provincial Laws: Provincial legislation, on the other hand, deals with both benefits and the rights and obligations a common-law couple have because of their relationship. Both married and common-law couples are spouses. Federal Laws: In general, you must have lived with your partner for at least one year to qualify as a common-law partner. Provincial Laws: In general, you must have lived with your partner for at least two years to qualify as a spouse. Wills and estates legislation also usually requires you to also have been living together at the time of your partner's death. Regardless of your federal or provincial status under these rules, it is not true that being a common-law spouse means that you are legally married. Being married involves a formal ceremony and certain other legal requirements like a marriage licence. Without that ceremony and that licence a common-law couple will never be married, no matter how long they've lived together.

As far as matters of family law are concerned, the federal Divorce Act only applies to couples who are or have been legally married to each other. The Family Relations Act and certain principles of the common law are the only game in town.

A. Qualifying as a Spouse: Cohabitation for Two Years This requirement of a common-law relationship is fairly self-explanatory. The only thing that needs to be pointed out is that the two year period doesn't need to be continuous. On the other hand, if a claim is based on the parties being common-law spouses, the court will probably examine the nature of the relationship in more detail. A gap of a three of years in the middle of the the two years a couple are supposed to have lived together probably won't cut it.

B. Qualifying as a Spouse: a Marriage-Like Relationship This is more complex than the calculation of the duration of a relationship, partly because it calls for the court to make a decision about the nature of the parties' private, personal relationship with one another. In a 1998 case called Takacs v. Gallo, the Court of Appeal for British Columbia endorsed these considerations:

Shelter: Did the parties live under the same roof? What were the sleeping arrangements? Did anyone else occupy or share the available accommodation? Sexual and Personal Behaviour: Did the parties have sexual relations? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings towards each other? Did they communicate on a personal level? Did they eat their meals together? What, if anything, did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions? Services: What was the conduct and habit of the parties in relation to, the preparation of meals, washing and mending clothes, shopping, household maintenance and other domestic services? Social: Did they participate together or separately in neighbourhood and community activities? What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties? What was the attitude and conduct of the community toward each of them and as a couple? Economic Support: What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship? Children: What was the attitude and conduct of the parties concerning children? In a nutshell, where common-law status is disputed, the court will enquire as to how the couple represented themselves to their family and friends, and as to the nature of their financial relationship and household relationship. Did the couple present themselves as a family unit and conduct their personal affairs as a family unit? The judge in a 2003 case from Saskatchewan, Yakiwchuk v. Oaks, expressed the difficulty of determining what is and what is not a marriage-like relationship this way:

"Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property — in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important — for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their 'spouse' by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some 'spouses' do everything together — others do nothing together. Some 'spouses' vacation together and some spend their holidays apart. Some 'spouses' have children — others do not. It is this variation in the way human beings structure their relationships that make the determination of when a 'spousal relationship' exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of 'public' declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to 'be together'. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people 'ease into' situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist." To be clear, though, mere roommates will never qualify as common-law spouses. There needs to be some other dimension to the relationship indicative of a committment between the parties and their shared belief that they are in a special relationship with each other.

C. Limitation Periods for Support While a claim for child support with respect to a child of the parties will remain open until the child reaches the age of 19, and possibly longer, there are three important things you need to know about claims for spousal support and claims for child support against stepparents:

A common-law spouse must bring a claim for spousal support within one year after the relationship ends, after which the claim will be barred by statute. A claim for child support against a person qualifying as a stepparent must be brought within one year after that person last contributed to the support of the child, after which the claim will be barred by statute. "Bringing a claim" means starting an action seeking an order for the payment of spousal support, not the date that the first application for support is made in the course of that action. In terms of when a relationship is considered to have ended, a recent case of the British Columbia Supreme Court took the view that the "marriage-like" quality a common-law relationship must have is fundamental to the nature of the relationship, and thus to the date from which the limitation period will begin to run. As a result a the marriage-like quality of a relationship can end before a couple physically separates, and the limitiation period will run from that date rather than the date someone moves out.

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II. Spousal Support

Providing a couple qualify as spouses, either party is entitled to seek an order for spousal support under the Family Relations Act. The same principles apply to spouses from common-law relationships as apply to married spouses: the party claiming support must be able to show that he or she is financially dependant on the other party because of the way the couple chose to live during the relationship, that he or she has suffered an economic disadvantage arising from the relationship, or that he or she has suffered an economic disadvantage arising from the breakdown of the relationship. The simple fact of having been in a common-law relationship does not guarantee that spousal support will be paid; the person seeking support must establish that he or she is entitled to support.

When someone is found to be entitled to receive spousal support, the amount of support payable and the length of time for which it will be paid will usually be calculated using the formulas set out in the Spousal Support Advisory Guidelines. The Advisory Guidelines determine the amount of support based on the difference between the spouses' incomes and determine the length of the payments based on either the duration of the spouses' cohabiting relationship or the age of the youngest child.

See the section Spousal Support for more detailed information on spousal support and the Advisory Guidelines.

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III. Children and Child Support

There is no minimum length-of-relationship requirement for any application involving children, although there is sometimes a difference between being a natural parent and being parent as the law defines the term.

A natural parent is the biological parent of a child. A legal parent is someone who becomes a parent through the operation of a law, such as through adoption. Under s. 1 of the Family Relations Act, a legal parent also includes stepparents and the common-law spouse of a parent, if that person has contributed to the support of the child.

A. Natural Parents A natural parent is a parent, and entitled to all of a parent's rights and obligations regardless of the nature of his or her relationship with the other parent.

Natural parents are entitled to all of the relief available under the Family Relations Act, from child support to custody, regardless of whether the parents were married or are common-law spouses. Natural parents who live together are presumed to share custody of their child.

See the section Children for more information.

B. Legal Parents Where a parent lives with another person in a marriage-like relationship for two years or more and the other person has contributed to the financial support of the child, the other other person will be a parent for the purposes of the Family Relations Act, providing an application involving the child is brought within one year of the of end the relationship.

From the point of view of the natural parent, this means that the legal parent can be required to continue to contribute to the support of the child through the payment of child support.

From the point of view of the legal parent, this means that your relationship with the child can continue after the end of the relationship. While you might be obliged to pay child support, you can also bring a claim against the natural parent for things like custody, guardianship and access to the child. You will also be able to ask that your child support payments be reduced to reflect the child support obligation of the child's other natural parent.

See the sections Children and Child Support for more information.

C. Adoption Common-law couples can apply to adopt a child together. A common-law spouse can also apply to adopt the other spouse's child, although the consent of the other natural parent of the child will usually be required.

See the chapter Other Family Law Issues > Adoption for more information.

D. Child Support Child support will be payable by anyone who is the natural parent of a child, regardless of whether the relationship which produced the child qualifies as common-law or not. Someone who becomes a legal parent, like the common-law spouse of a parent, may also be required to pay child support. Section 88 of the Family Relations Act states that:

Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child. According to s. 93(1)(a) of the act, child support is to be paid in the amount specified by the Child Support Guidelines. As a result, all of the provisions of the Guidelines apply, including:

the tables that are used to calculate the amount of support; the exceptions when child support can be paid in an amount different than what the tables would normally require; and, the rules about the payment of children's special expenses. For common-law couples, the Guidelines for child support are set by provincial laws, however, as the Guidelines that apply are the same as for married couples under the federal Child Support Guidelines, all of the same rules will apply.

See the section Child Support for more information.

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IV. Assets and Debts

Anyone who is not married, including common-law spouses, is excluded from the parts of the Family Relations Act which deal with the division of family assets and pensions. As a result, a common-law spouse making a claim for the division of assets will have to rely on the law of trusts to obtain an order for a share of assets owned by the other spouse.

A. Constructive Trusts The most common trust claim is a claim for a constructive trust. A constructive trust is one of the common law remedies for unjust enrichment. Unjust enrichment is proven by showing that:

one party has gained an benefit from the other party; the other party has been deprived in some way related to the benefit; and, there is no legal reason why the first party gained the benefit. If these three criteria are met, the court may decide that the person gaining the benefit was unjustly enriched and impose a constructive trust to compensate the deprived party.

Think of it like this:

Partner A and Partner B have a very traditional relationship: A goes off and works at a cardboard box factory bringing home the bacon, while B stays home, maintains the household and cooks and cleans. Partner A gets the benefit of Partner B's domestic services, which saves A from having to hire a cook and a housekeeper. At the same time, however, B could have sold exactly those services to someone else and been paid for working elsewhere as a launderer, cook or housekeeper. Of course, because of the romantic nature of their relationship A never paid B for his services and B never asked for payment. Partner A has been unjustly enriched as a result of the services she gained from Partner B, and B lost the value he would have received by performing those services for someone else. While constructive trusts are the most common way to establish interest in an asset, they are always difficult to prove and the results can be disappointingly small. For example, the court might look at Partner A and Partner B and say to B: "Ah, but you didn't pay any rent during your relationship, did you? You got free room and board in exchange for your work in the house, and we'll chop the value of that from your claim."

You should not get the impression that claims in constructive trust are doomed to fail. They're not. However, you must understand that they're generally not nearly as fruitful as claims under the Family Relations Act. Marriage is the only way to guarantee an interest in your partner's assets.

Trust claims are discussed in a lot more detail in the chapter Family Assets > Dividing Assets and in my blog.

B. Jointly-Owned Assets In the case of jointly owned assets, that is, assets held in the name of both parties, there is a presumption that each party has an equal interest in the asset, regardless of how they may have contributed to the purchase of an asset.

Most of the time one party will keep the asset and buy the other person out by paying a cash amount equal to his or her interest in the property. If there isn't enough cash to make that a possibility, often the solution lies in selling the asset and splitting the sale proceeds.

It the parties own real estate together, they can also apply for an order that the property be sold and the proceeds divided between them under the provincial Partition of Property Act.

C. "Opting-In" to the Family Relations Act Until 24 November 2011, common-law couples who had executed a cohabitation agreement were subject to the full benefit and misery of the portions of the Family Relations Act that govern the division of property for married couples as a result of s. 120.1:

(1) If spouses who are not married to each other make an agreement, Parts 5 and 6 apply to (a) the agreement ... (2) In this section: "agreement" means an agreement that would be (a) a marriage agreement for the purposes of Part 5 if the spouses were married to each other, or (b) a separation agreement if the spouses were married to each other or separated after marriage. "property" means property of a spouse that would be a family asset under Part 5 if the spouses were married to each other. This section was repealed upon the new Family Law Act receiving royal assent and is no longer in force in British Columbia.

D. Debts As far as debts are concerned, common-law partners will generally keep the personal debts they entered into the relationship with. They may be responsible for sharing the debts which were incurred afterwords, but only if the debt is connected with the relationship and wasn't spent on purely personal expenses. Debts incurred jointly will usually be shared between the parties.

However, if a couple has a joint debt, such as a bank loan which both parties signed, a joint credit card or a secondary credit card on the other party's account, both parties will continue to be responsible for the debt after their relationship has broken down. This has nothing to do with family law, it has to do with the bank wanting to secure payment of its loans. This can have some serious consequences, since the bank won't care who's more responsible for the debt than the other. If a payment is missed or the loan goes into default, both parties will be responsible and the credit ratings of both will suffer.

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V. Government Benefits

The fact that a couple live together may entitle one or both of them to certain benefits paid by the federal or provincial government of they qualify as spouses. It can also expose them to the prospect of losing those benefits, most notably social assistance payments.

A. Social Assistance The ministry which administers the Employment and Assistance Act and is responsible for social assistance often treats anyone living together as a couple as being in a common-law relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under the "spouse in the house" rule. As soon as you and your partner — or the person the ministry claims is your partner — stop living together, the ministry will usually return to treating you as single.

B. Employment Insurance EI applies the same standard to common-law couples as it does to married couples.

C. Canada Pension Plan Common-law couples may share in each other's pension benefits, however this sharing is not automatic. You must apply to share your CPP credits with your spouse.

There may be positive income tax consequences if you elect to share your CPP benefits. You will be eligible to share your pension if you have been living togther as a couple for at least one year and you are both at least 60 years old.

D. Old Age Security Pension The Old Age Security Pension is available to people who are at least 65 years old. You may be entitled to receive the amount for a couple rather than for two single people if you have been living together as a couple for at least one year.

E. Medical and Dental Benefits The Medical Services Plan will cover your partner on your plan without any minimum limit on the length of time you've been living together, although you must have signed your partner up on the plan and must pay the family rate rather than the single rate.

If you or your partner receive any workplace medical or dental insurance coverage, check with the plan adminstrator to see if common-law partners are eligible beneficiaries under your plan.

F. ICBC Death Benefits A surviving common-law partner can apply to receive death benefits from ICBC when the other party is killed in a car accident, regardless of whose fault the accident was.