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Difference between revisions of "Couples Who Are Not Spouses: Your Income, Support and Property Rights"

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{{REVIEWEDPLS | reviewer = Thomas E. Wallwork|date= August 2017}} {{Dial-A-Law TOC|expanded = relationships}}
{{REVIEWEDPLS | reviewer = Thomas E. Wallwork|date= August 2017}} {{Dial-A-Law TOC|expanded = relationships}}
Not all couples who live together meet the definition of “'''spouse'''” under BC’s family law. For these couples, learn your entitlement to benefits and what happens if you split up.
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.


==Understand your legal rights==
{{PLSStorybox
| 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
}}


===The law defines who is a “spouse”===
==What you should know==
BC’s ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec3_smooth Family Law Act]'' defines the term “'''spouse'''” as including married spouses as well as:
*people who have lived together in a marriage-like relationship for at least two years, and
*people who have lived together in a marriage-like relationship for less than two years and have had a child together (in this case, you aren’t considered a spouse when it comes to property, debt or pensions; we explain what this means shortly).


A couple is seen as living in a “'''marriage-like relationship'''” if they present themselves as a family unit to family and friends, and conduct their financial and household affairs as a couple.  
===Who a spouse is===
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.


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).
[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:


===Getting income assistance===
* people who have lived together in a marriage-like relationship for at least '''two years''', and
The BC government provides '''welfare benefits''' such as income assistance to those in financial need.
* 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).


As soon as you start to live together with someone else, the welfare office may treat you like spouses. When you apply for welfare, your caseworker will look at the income and assets for both of you. Under BC’s [https://www.canlii.org/en/bc/laws/stat/sbc-2002-c-40/latest/sbc-2002-c-40.html#sec1.1_smooth welfare law], "spouse" includes people living together for '''three months''' if the welfare caseworker believes their relationship demonstrates "financial dependence or interdependence, and social and familial interdependence, consistent with a marriage-like relationship”.
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.


If you fall within this definition and you qualify for income assistance, you would get it at the rate for a couple or family, and not as two single people.  
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.


You have the right to challenge the welfare office’s decision. For step-by-step guidance, see our information on [[Income Assistance: Reconsiderations and Appeals (No. 288)|income assistance reconsiderations and appeals (no. 288)]].
===Your rights to support===
Support is money paid by one parent or guardian to another, or one spouse to the other, for financial help after a relationship ends.


If you claim welfare as a single person when you’re actually living with someone else as a couple, and your relationship is discovered, you may be required to repay any benefits you have received. You may also face a civil court case or even criminal charges, and you could be refused future services by the welfare Ministry.
====Child support====
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.


==Getting benefits under a pension plan==
To learn more, [[Child Support (No. 117)|see our information on child support]].
'''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'''.
For more information on Old Age Security benefits, see our information on [[Seniors' Rights and Elder Abuse (No. 239)|the laws affecting older adults (no. 239)]].


Private pension plans generally do not provide benefits for people who are not spouses.
====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:


==Getting Employment Insurance benefits==
* keep the property each of them brought into their relationship
The federal government provides '''Employment Insurance benefits''' to workers who lose their job. You may be eligible for EI benefits if you leave a job to accompany your partner to another place of residence. Employment Insurance defines a couple as spouses if they have lived together in a “conjugal relationship” for at least '''one year'''.
* 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''')


You can also get EI benefits if you leave your job to follow your partner if you are expecting the birth of a child or caring for an immediate family member.
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.


Note you won’t qualify for benefits if Employment Insurance concludes you had reasonable alternatives to keep your job, such as requesting a transfer or commuting from the new place of residence.
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.


===Coverage under your partner’s medical and dental plans===
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.
The BC Medical Service Plan covers people who live together. There’s no requirement about how long you must have been living together.
 
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.


Medical or dental plans or extended health plans from an employer generally do not provide benefits for people who are not spouses.
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]].


===Responsibility for your partner’s debts===
If you claim income assistance as a single person when you’re actually living with someone else as a couple, you:
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.


If you both sign for a loan, however, you are both responsible to repay the debt. As well, if you '''guarantee''' your partner’s loan, and your partner is unable or refuses to make the payments, you’ll be responsible. That is so even though you may not have had any benefit from the loan. If you end up paying some or all of the loan, you can pursue your partner to pay you back.  
* 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.


===If you separate, your rights to spousal support===
===Getting benefits under a pension plan===
When a couple breaks up, support is money one person pays another to help with expenses. To be eligible to receive '''spousal support''' from your partner, you must have either:
'''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'''.
*lived in a marriage-like relationship with your partner for two years or more, or
*lived in a marriage-like relationship with your partner and had a child with them.


See our information on [[Spousal Support (No. 123)|spousal support (no. 123)]] for the factors that go into a support award.
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.


===Your rights to property acquired during the relationship===
Private pension plans generally don’t provide benefits for people who aren’t spouses.
Rights to property is one of the key areas in which being a spouse under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec84_smooth Family Law Act]'' makes a difference. Under the Act, spouses are presumed to keep the property each of them brought into their relationship and to share in the things they acquired during their relationship (called “'''family property'''”). Only spouses who are '''married''' or lived together in a marriage-like relationship '''for at least two years''' share an interest in family property.


If you do not meet this definition of spouse, the only property you are presumed to keep is the property you brought into the relationship. As well, if you own property together (jointly) — such as a house, a car, or bank accounts — you are each presumed to have an equal interest in the joint property.  
===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.


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 will have to prove your contributions to the purchase and that you didn’t mean your extra contributions to be a gift.
You can also get EI benefits if you leave your job to follow your partner if you’re:


The law in this area is complex and it is highly advisable to seek legal advice.
* expecting the birth of a child, or
* caring for an immediate family member.


===Your rights to property based on “unjust enrichment”===
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.
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 of some sort as a result of making those contributions, and
*there is 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 make an order requiring your partner to compensate you. If your partner can’t afford to make the payment, the court may impose a trust, called a “'''constructive trust'''”, on your partner’s property so you can be paid the compensation you are owed.
===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.


The law in this area is complex and it is highly advisable to seek legal advice.
Medical or dental plans or employers’ extended health plans generally don’t provide benefits for people who aren’t spouses.


==Common questions==
==Common questions==


===Will I have to go to court?===
===Will I have to go to court?===
If you separate, you may have to go to court to sort out some of your support rights and perhaps your property rights. Family Court is a part of the BC Provincial Court, where you can settle many questions dealing with support for you and your children, plus guardianship, parenting arrangements, and contact. Family Court '''can’t''' deal with property issues and it can’t make orders about who will live in the family home. For this, you’ll have to go to BC Supreme 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, see our information on [[Family Court (No. 110)|Family Court (no. 110)]].
For more on going to court, [[Family Court (No. 110)|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?===
===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 your will, you can say who you want your property to go to. You can also name a guardian who’ll be legally responsible for your children after you and your partner die.
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, see our information on [[Preparing a Will and Estate Planning (No. 176)|preparing a will (no. 176)]] and [[When Someone Dies Without a Will (No. 177)|what happens when you die without a will (no. 177)]].
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]].


==Get help==
==Who can help==


===With more information===
===With more information===
The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has information on unmarried relationships.
The wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, has information on unmarried relationships.
:Web: [http://wiki.clicklaw.bc.ca/index.php/Other_Unmarried_Relationships wiki.clicklaw.bc.ca]
 
[[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]


'''Legal Services Society''', the legal aid provider in BC, publishes the booklet “[http://www.legalaid.bc.ca/publications/pub.php?pub=347 Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce]”.
===Free and low-cost legal help===
:Web: [http://www.legalaid.bc.ca/ legalaid.bc.ca]
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]].


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Elena Renderos
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