What is “Common-Law”?Mar 20 2023
Common-law is a widely understood term used to reference two people living together in a marriage-like relationship but who are not legally married. What many may not realize is that the BC Family Law Act does not have a legal definition for the term “common-law” nor is it a correct legal title. So really the question is whether the relationship qualifies as spousal.
Definition of Spouse
Under section 3 of the Family Law Act, a person is considered a spouse in two ways. Either an individual is legally married to another person OR the individual has lived with another person in a “marriage-like” relationship and has done so for a continuous period of at least 2 years, or have a child with another person.
Of key importance is to note the distinction between whether two people have lived together for less than 2 years but have a child together compared to two people who have lived together for less than 2 years and do not have a child together is significant when determining the division of family assets and debts, otherwise referred to as family property.
This 2-year period starts to run when you and your partner start living together in a marriage-like relationship, often referred to as when you started to cohabitate. There is no set check list for what constitutes a marriage-like relationship and determining whether such a relationship qualifies as one is highly factual to the relationship.
In 1999, the Supreme Court of Canada provided factors to consider but no single factor is more important than the others, any it may be possible to not even physically live together depending on the circumstances. Neither opposite-sex nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is ‘conjugal’ [or marriage-like]” (M v. H,  2 SCR 3 at paragraph 59). Some of the factors considered are:
- Financial arrangements: ownership of property (who owns what and how is it registered)? How household bills are dealt with? Is a party is named as a dependent in a benefit plans or beneficiary on life insurance policies or RRSPs?
- Relationship with each of their families: do they know extended family? Spend special occasions together? Have children together or any role with each other’s children?
- Participation in social and community activities together
- Presentation and introduction of each other: refer to as wife/husband, roommate, friend? What do tax returns say? Listed as next of kin on any documents? Photographs of each other on display?
- Daily routine: are chores divided up? How are such things as preparation of meals, shopping, household maintenance, etc., dealt with?
- Intimacy of relationship (physical and emotional): Sexual? Fidelity towards each other? Communication on personal level? Assist each other if ill? Buy gifts for each other? Share childhood memories? Make plans together for future?
Why does it matter?
Common-law spouses may be entitled to a future claim for division of family assets. Family assets are, broadly speaking, assets accumulated during the relationship or the increase in value of assets that pre-date the relationship. Whether a person is entitled will depend on whether they qualify as a spouse under section 3, meaning, you must have been in a marriage-like relationship for at least 2 consecutive years.
A claim for spousal support, a monthly or lump-sum payment from a spouse, can be sought after the same 2-year period or sooner in cases where the two individuals share a child together.
If you are someone with significant assets prior to moving into a home with your new partner or want to minimize possible future obligations to pay spousal support, the best way to protect your interests are to speak with a Family lawyer about preparing a cohabitation agreement, otherwise known as a “pre-nup”.
For an understanding of whether your relationship qualifies as marriage-like for the purposes of estate planning, see our blog post here: https://rdmlawyers.com/insights/wills-estates-planning/are-you-in-a-spousal-relationship/.
Cohabitation agreements allow you and your partner the opportunity to contract out of the Family Law Act statutory requirements for property division and spousal support. It allows you to be creative with how your assets/debts may be handled in the event that a separation arises. The benefit of doing this early is of course the relationship is amicable and positive at that time. This provides a version of insurance for your relationship. You hopefully will not need to use it but if you do, you will be glad you have it.
Cohabitation agreements can be made whether you intend to get married at a later date or not. They can also be done after you have started to live with someone, but it is recommended that you look into obtaining one early into the relationship and prior to the 2-year period being reached.
While we often get inquiries from couples, it is typically recommended for each partner to receive independent legal advice before signing a cohabitation agreement. For that reason, we will usually require that any meetings or correspondence are with just one partner and the other person will be encouraged to see a lawyer at another firm for legal advice.
If you have questions about whether your relationship qualifies as “marriage-like” or you would like us to prepare a cohabitation agreement, our Family Law team can help. Please contact our office at 604.853.0774 to schedule a consult today.