Common law spouses have certain rights/obligations conferred on them by various statutes and the common law. Each statute may give a slightly different definition of a common law “spouse”. A general rule is that for most federal legislation it takes one year of living together in a “marriage-like relationship” to qualify as common law and for most provincial legislation it takes two years to qualify (See ''Takacs v. Gallo'' (1998), 157 D.L.R. (4th) 623 for a summary of the indicators to be considered when determining whether parties have lived in a “marriage-like relationship”; see ''Matteucci v Greenberg'', 2014 BCSC 1434; ''Trudeau v Panter'', 2013 BCSC 706 that merely living together does not mean a relationship is marriage-like).  Under the ''FLA'', a person will be considered a ‘spouse’ if they have lived in a marriage-like relationship and have a child together (for spousal support only), or if they have lived in a marriage-like relationship for a continuous period of 2 years (see ''CAM. v MDQ'', 2014 BCPC 110 regarding the child exception to living together for two years). This period begins when the couple began to live together in a marriage-like relationship. Someone separating within two years of ''FLA'' coming into force is a spouse (''Meservy v Field'', 2013 BCSC 2378).  See [[Family Law Glossary (3:App A) | Appendix A: Glossary]] at the end of this chapter for a brief list of definitions. For more extensive definitions, consult the current legislation.  Remember that a common law relationship is not a legal marriage. Nevertheless, where legal rights and obligations are conferred on common law spouses, the relationship is still valid even if one or both of the parties is currently married to someone else. === 2. Estate Considerations === ==== a) Wills, Estates and Succession Act (which came into force March 31, 2014) ==== Two persons of either gender are considered spouses under this act if they are either married to each other, or if they have lived in a marriage-like relationship for at least 2 years (s 2(1)(b)). They cease to be considered spouses if one or both partners terminates the relationship (s 2(2)(b)).  If two or more persons are entitled to a spousal share of an intestate estate (estate for which the deceased has not left a will), they may agree on how to portion the share. If they cannot agree, a court will determine how to portion the spousal share between them.  If two or more persons are eligible to apply to be given priority as a spouse in the division of an intestate estate, they may agree on who is to apply. If they cannot agree, the Court can make a decision.  ==== b) Canada Pension Plan Act, RSC 1985, c C-8 ====  Common law spouses who have cohabited with a contributor for one year before the contributor’s death may be able to claim death benefits. Forms can be obtained from a CPP office.  ==== c) Workers’ Compensation Act, RSBC 1996, c 492 ==== A common law relationship is recognized after cohabitation for two years. If there is a child, one year is sufficient.  ==== d) Employment and Assistance Act, SBC 2002, c 40 ==== A common law relationship can arise from cohabitation as short as 3 months that is “consistent with a marriage-like relationship” (s 1.1). Common law relationships are dealt with as marriages, and as single-family units where there are children.  == C. Marriage, Pre-Nuptial, and Cohabitation Agreements == === 1. General === Marriage or pre-nuptial agreements are agreements drafted by a married couple or in contemplation of marriage that address how to resolve a family law dispute, if one should arise. Cohabitation agreements similarly govern family law disputes between unmarried couples who expect to live in a marriage-like relationship for at least 2 years. Agreements can address matters that may be the subject of a dispute in the future, the means of resolving a dispute, and the implementation of the agreement. Agreements cannot override dispute resolution procedures mandated by statute.  Those interested in drawing up marriage, cohabitation, or pre-nuptial contracts on their own can be directed to the self-help kit. However, contracts drawn up using self-help kits are often overturned in Court. Independent legal advice is extremely important in order to have enforceable marriage or cohabitation agreements, and persons wishing to rely on a pre-nuptial agreement are strongly encouraged to seek the advice of a lawyer.  === 2. Legislation: === ==== a) Family Law Act [FLA] ==== The new ''FLA'' attempts to increase the enforceability of marriage, cohabitation, and pre-nuptial contracts, and to provide clearer guidelines for the circumstances under which they can be binding. Agreements will be binding on the parties whether or not a family dispute resolution professional has been consulted, and whether or not the agreement has been filed with a court. Agreements will be binding on children who are parents or spouses (Part 2, s 6).  Section 93(3) of the ''FLA'' also states that courts can set aside an agreement if: *a) spouses do not make full and honest disclosure of all relevant financial information *b) one spouse takes improper advantage of another’s vulnerability *c) one spouse does not understand the nature or consequence of the agreement *d) other circumstances that would cause, under common law, all or part of the contract to be voidable  The above concerns are often addressed by having the parties obtain independent legal advice. Section 93(5) of the ''FLA'' states that the courts can also set aside an agreement if they find the agreement substantially unfair after considering these factors: *(a) the length of time that has passed since the agreement was made; *(b) the intention of the spouses, in making the agreement, to achieve certainty; *(c) the degree to which the spouses relied on the terms of the agreement.  The ''FLA'' is drafted to make it harder for courts to set aside agreements on the basis of unfairness. The Court will only set aside an agreement made between spouses respecting the division of property and debt, if the division agreed to would be "substantially different" from the division that the Court would order and "significantly unfair" to one of the spouses (See ''Thomson v Young'', [2014] CarswellBC 1287 (BCSC)).  The test for setting aside an agreement is to first look at the formation of the agreement (s 93(3)) and then the effects of the agreement (s 93(5)). Please note that section 93(4) states that a Court may refuse to set an agreement aside even if it was unfairly reached (''Asselin v Roy'', 2013 BCSC 1681).  Section 1 of the ''FLA'' provides a definition of “Written Agreement” as an agreement written and signed by all parties. Written agreements should also be witnessed by someone over the age of 19 to address potential evidentiary issues at a later date.