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Difference between revisions of "Unmarried Spouses"
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| resourcetype = a publication on ''Family Law Act'' basics titled | | resourcetype = a publication on ''Family Law Act'' basics titled | ||
| link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart] | | link = [http://clicklaw.bc.ca/resource/1058 Living Together or Living Apart] | ||
}}The provincial ''[[Family Law Act]]'' defines ''spouse'' as including married spouses and unmarried couples, provided that the unmarried couple has lived together in a | }}The provincial ''[[Family Law Act]]'' defines ''spouse'' as including married spouses and unmarried couples, provided that the unmarried couple has lived together in a ''marriage-like relationship'' for at least two years, or lived together for less than two years if they have had a child. Because the federal ''[[Divorce Act]]'' only applies to married spouses, all of the rules that apply when unmarried relationships end are found in the ''Family Law Act''. | ||
This section talks about qualifying as unmarried spouses, the consequences of being in a spousal relationship, and unmarried spouses' entitlement to government benefits. This section also talks about the legal issues involved when a relationship breaks down. The next section in this chapter, [[Other Unmarried Relationships]], talks about couples in unmarried relationships who don't qualify as spouses. | This section talks about qualifying as unmarried spouses, the consequences of being in a spousal relationship, and unmarried spouses' entitlement to government benefits. This section also talks about the legal issues involved when a relationship breaks down. The next section in this chapter, [[Other Unmarried Relationships]], talks about couples in unmarried relationships who don't qualify as spouses. | ||
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==Introduction== | ==Introduction== | ||
The legal rights and responsibilities people in an unmarried relationship owe to each other, and the government benefits to which they might be entitled, are described in a number of different laws, and these different laws have different definitions of what it means to be a | The legal rights and responsibilities people in an unmarried relationship owe to each other, and the government benefits to which they might be entitled, are described in a number of different laws, and these different laws have different definitions of what it means to be a spouse; a couple might meet the test under one law but not the test under another. | ||
Although married couples are always married spouses, unmarried couples aren't always unmarried spouses. For example, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' defines | Although married couples are always married spouses, unmarried couples aren't always unmarried spouses. For example, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' defines spouse as including people who have cohabited for one year, while the provincial ''[http://canlii.ca/t/84l7 Employment and Assistance Act]'' defines spouse as including people living together for three months if the welfare caseworker believes that their relationship demonstrates "financial dependence or interdependence, and social and familial interdependence." | ||
Regardless of a couple's federal or provincial status under these rules, it is not true that being an unmarried spouse or common-law partner | Regardless of a couple's federal or provincial status under these rules, it is not true that being an unmarried spouse or common-law partner (the expression used in a number of federal laws) 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, unmarried spouses will never be married, no matter how long they've lived together. | ||
===Provincial legislation=== | ===Provincial legislation=== | ||
For most provincial laws, the question is whether or not a particular couple are | For most provincial laws, the question is whether or not a particular couple are spouses. Qualifying as a spouse might mean that you are entitled to the family rate for MSP, that you can share in your spouse's estate in the event your spouse dies, or that you are no longer entitled to social assistance. | ||
In general, for most but not all provincial laws, you must have lived with your partner for at least two years to qualify as a spouse. (The laws about sharing in a spouse's property after | In general, for most but not all provincial laws, you must have lived with your partner for at least two years to qualify as a spouse. (The laws about sharing in a spouse's property after their death also require you to have been living together at the time of your spouse's death.) Here's the definition of "spouse" from the ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]'': | ||
<blockquote><tt>[...] 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and</tt></blockquote> | <blockquote><tt>[...] 2 persons are spouses of each other for the purposes of this ''Act'' if they were both alive immediately before a relevant time and</tt></blockquote> | ||
<blockquote><blockquote><tt>(a) they were married to each other, or</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(a) they were married to each other, or</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(b) they had lived with each other in a marriage-like relationship for at least 2 years.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) they had lived with each other in a marriage-like relationship for at least 2 years.</tt></blockquote></blockquote> | ||
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Here's the definition from s. 3 of the ''Family Law Act'': | Here's the definition from s. 3 of the ''Family Law Act'': | ||
<blockquote><tt>(1) A person is a spouse for the purposes of this Act if the person</tt></blockquote> | <blockquote><tt>(1) A person is a spouse for the purposes of this ''Act'' if the person</tt></blockquote> | ||
<blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(a) is married to another person, or</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) has lived with another person in a marriage-like relationship, and</tt></blockquote></blockquote> | ||
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===Federal legislation=== | ===Federal legislation=== | ||
Most federal laws distinguish between | Most federal laws distinguish between spouses, people who are legally married, and common-law partners, who aren't. Qualifying as a common-law partner might mean that you are entitled to a share of your partner's CPP credits, receive the Old Age Security spouse allowance or survivor's benefits, or the spouse amount for the GST Credit. | ||
In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from the ''[http://canlii.ca/t/7vjx Old Age Security Act]'': | In general, you must have lived with your partner for at least one year to qualify as a common-law partner under federal legislation. Here's the definition from the ''[http://canlii.ca/t/7vjx Old Age Security Act]'': | ||
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<blockquote><tt>"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and </tt></blockquote> | <blockquote><tt>"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and </tt></blockquote> | ||
<blockquote><blockquote><tt>(a) has so cohabited throughout the 12-month period that ends at that time, or</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(a) has so cohabited throughout the 12-month period that ends at that time, or</tt></blockquote></blockquote> | ||
<blockquote><blockquote><tt>(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) would be the parent of a child of whom the taxpayer is a parent, if this ''Act'' were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),</tt></blockquote></blockquote> | ||
<blockquote><tt>and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of least 90 days that includes the particular time because of a breakdown of their conjugal relationship.</tt></blockquote> | <blockquote><tt>and, for the purpose of this definition, where at any time the taxpayer and the person cohabit in a conjugal relationship, they are, at any particular time after that time, deemed to be cohabiting in a conjugal relationship unless they were living separate and apart at the particular time for a period of least 90 days that includes the particular time because of a breakdown of their conjugal relationship.</tt></blockquote> | ||
"Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship." | "Conjugal relationship" is the federal equivalent of British Columbia's "marriage-like relationship." | ||
=== | ===Common-law spouses=== | ||
Family law in British Columbia doesn't talk about people who are | Family 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 principles established by the common law, 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''. | ||
Normally I wouldn't make a fuss about terminology like this, except that the phrase | Normally I wouldn't make a fuss about terminology like this, except that the phrase common-law spouses kind of suggests that there are certain rights and entitlements that a couple get from the operation of the common law, and this really isn't the case and it hasn't been the case for two-and-a-half centuries. What's really important is whether a couple are spouses under the particular law that they're looking at; all of their rights and entitlements come from the operation of a statute. | ||
There is no such thing as a | There is no such thing as a common-law spouse or a common-law marriage in British Columbia. If you're not married but you're a spouse, it's because of s. 3 of the ''[[Family Law Act]]''. | ||
==Qualifying as an unmarried spouse== | ==Qualifying as an unmarried spouse== | ||
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This requirement of an unmarried spousal relationship is fairly self-explanatory. An unmarried couple who have lived together and had a child together are spouses who are eligible to ask for spousal support, regardless of how long or how short a period of time they lived together. An unmarried couple who have lived together for at least two years are spouses who are eligible to ask for spousal support and orders about the division of property and debt. | This requirement of an unmarried spousal relationship is fairly self-explanatory. An unmarried couple who have lived together and had a child together are spouses who are eligible to ask for spousal support, regardless of how long or how short a period of time they lived together. An unmarried couple who have lived together for at least two years are spouses who are eligible to ask for spousal support and orders about the division of property and debt. | ||
The only thing that needs to be pointed out is that the two-year period doesn't need to be continuous | The only thing that needs to be pointed out is that the two-year period doesn't need to be continuous. A gap of three months in the middle of the two years a couple are supposed to have lived together might prevent someone from claiming that a couple are spouses; on the other hand, if the three months' absence was because someone was working out of town, the three months may not matter very much. But if a claim is based on the parties being unmarried spouses, the court will probably look at the nature of the relationship in more detail. | ||
===...In a | ===...In 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 ''[http://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6428 (BCCA) our Court of Appeal endorsed these considerations: | 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 ''[http://canlii.ca/t/1dz3n Takacs v. Gallo]'', 1998 CanLII 6428 (BCCA) our Court of Appeal endorsed these considerations: | ||
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<blockquote>What was the attitude and conduct of the parties concerning children?</blockquote> | <blockquote>What was the attitude and conduct of the parties concerning children?</blockquote> | ||
In a nutshell, where the | In a nutshell, where the marriage-like quality of a relationship 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 the Saskatchewan Court of Queen's Bench, ''[http://canlii.ca/t/5bpc Yakiwchuk v. Oaks]'', 2003 SKQB 124, expressed the difficulty of determining what is and what is not a marriage-like relationship this way: | ||
<blockquote>"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."</blockquote> | <blockquote>"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."</blockquote> | ||
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===Time limits=== | ===Time limits=== | ||
An unmarried spouse who has a child can face a claim for child support until the child reaches the age of 19, and possibly longer. Child support is mostly about being a parent not being a spouse. | An unmarried spouse who has a child can face a claim for child support until the child reaches the age of 19, and possibly longer. Child support is mostly about being a parent, not being a spouse. | ||
However, there are three important things you need to know about claims for spousal support and claims for child support against stepparents: | However, there are three important things you need to know about claims for spousal support and claims for child support against stepparents: | ||
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''Bringing a claim'' means starting a court proceeding asking for a particular order, not the date when the first application is made in that proceeding. | ''Bringing a claim'' means starting a court proceeding asking for a particular order, not the date when the first application is made in that proceeding. | ||
The date of separation is the date when one or both spouses realize that their relationship is over, says so, and ends the | The date of separation is the date when one or both spouses realize that their relationship is over, says so, and ends the marriage-like quality of the relationship. As a result, the marriage-like quality of a relationship can terminate before a couple physically separates, and the time limits will usually begin to run from that date rather than the date someone moves out. | ||
====Effect of dispute resolution processes==== | ====Effect of dispute resolution processes==== | ||
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Under s. 198(5) of the ''[[Family Law Act]]'', the running of the time limits "is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." The purpose of this provision is to allow people to engage in dispute resolution without having to feel pressured into starting a court proceeding to stop a time limit from running out. However, this provision isn't as straightforward as it looks. | Under s. 198(5) of the ''[[Family Law Act]]'', the running of the time limits "is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional." The purpose of this provision is to allow people to engage in dispute resolution without having to feel pressured into starting a court proceeding to stop a time limit from running out. However, this provision isn't as straightforward as it looks. | ||
First, the parties have to be engaged in a process of ''family dispute resolution''. That term is defined in s. 1 of the | First, the parties have to be engaged in a process of ''family dispute resolution''. That term is defined in s. 1 of the ''Act'' as including: | ||
*the services of a family justice counsellor, | *the services of a family justice counsellor, | ||
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*arbitration. | *arbitration. | ||
You'll notice that negotiation isn't on this list. As well, under the [http://canlii.ca/t/8rdx Family Law Act Regulation], a process of mediation and arbitration requires the execution of a mediation agreement or an arbitration agreement to count as mediation or arbitration under s. 1. | You'll notice that negotiation isn't on this list. As well, under the [http://canlii.ca/t/8rdx ''Family Law Act'' Regulation], a process of mediation and arbitration requires the execution of a mediation agreement or an arbitration agreement to count as mediation or arbitration under s. 1. | ||
Second, the parties have to be engaged in one of these processes with a ''family dispute resolution professional''. This term is defined in s. 1 of the | Second, the parties have to be engaged in one of these processes with a ''family dispute resolution professional''. This term is defined in s. 1 of the ''Act'' as including: | ||
*family justice counsellors, | *family justice counsellors, | ||
*lawyers, | *lawyers, | ||
*mediators who meet the training requirements set out in the Family Law Act Regulation, and | *mediators who meet the training requirements set out in the ''Family Law Act'' Regulation, and | ||
*arbitrators who meet the training requirements set out in the Family Law Act Regulation. | *arbitrators who meet the training requirements set out in the ''Family Law Act'' Regulation. | ||
In other words, being engaged in a family dispute resolution process with someone like a community leader, an elder, a senior family member, a priest, an imam or a rabbi won't cut it unless the person also happens to fit into the definition of family dispute resolution professional. | In other words, being engaged in a family dispute resolution process with someone like a community leader, an elder, a senior family member, a priest, an imam or a rabbi won't cut it unless the person also happens to fit into the definition of family dispute resolution professional. | ||
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===Social assistance=== | ===Social assistance=== | ||
The ministry that administers the ''[http://canlii.ca/t/84l7 Employment and Assistance Act]'' and is responsible for social assistance often treats anyone living together as a couple as being in a spousal relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under what's known as the | The ministry that administers the ''[http://canlii.ca/t/84l7 Employment and Assistance Act]'' and is responsible for social assistance often treats anyone living together as a couple as being in a spousal relationship, whether you are or aren't. This will decrease, and sometimes cancel, your benefit entitlement under what's known as 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. | ||
===Employment Insurance=== | ===Employment Insurance=== | ||
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===Old Age Security Pension=== | ===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, as well as other benefits like the spouse allowance and survivor's benefits, if you have been living together as a couple for at least one year. | The federal 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, as well as other benefits like the spouse allowance and survivor's benefits, if you have been living together as a couple for at least one year. | ||
===MSP and medical and dental benefits=== | ===MSP and 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. | The BC 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 administrator to see if unmarried couples are eligible beneficiaries under your plan. | If you or your partner receive any workplace medical or dental insurance coverage, check with the plan administrator to see if unmarried couples are eligible beneficiaries under your plan. | ||