What the Heck is Common Law marriage?

Hi, I’m Dan. I am new to Recover Family Law and wanted to write an article introducing myself. I just finished my first year at law school and am happy to help answer this question for you. I can even answer it in the Queen’s English that heretofore shall not be pretentious, pontifical or peremptory! Forgive me, I paid way too much to learn those words and wanted to try them out. I promise that the rest of this article will show that I grew up on a farm rather than pretending I summer on the family yacht.  

What is a common-law couple? Common law is a term that mean law created by the courts. Initially the BC Courts said if you look like you are married, we will treat you like you are married. But the BC Government liked that idea so much, they made a series of laws, the Family Law Act (FLA), to confirm it. Nobody will claim a good idea for themselves quite like a government.

The FLA treats married couples and people who have lived like a married couple for at least 2 years the same. The FLA calls these two groups “spouses”. Spouses have the same rights to property division, obligations for pension division and opportunity for spousal support.

Unfortunately, misconceptions about common-law relationships are widespread and parties in these relationships often don’t understand what their rights are when the relationship ends.

Let's analyze a few of these common misconceptions.

"We're Not Married, So We Have No Legal Obligations to Each Other."

Reality: um… no

In British Columbia, unmarried spouses may have significant legal rights and obligations if they have lived together in a marriage-like relationship for at least two years..

 Once that threshold is met, the law may treat common-law spouses similarly to married spouses for many purposes, including property division and spousal support.

So what is marriage-like? That is a very factual question that has no real hard lines. Answer to questions like:

• Do you tell people you are together?

• Do you live together?

• Are you intimate with each other?

• Do you share financial resources?

• Do you want to continue to be together forever?

• Do you take care of each other?

• Do you plan to get married?

• What have you expressed to each other about your intentions?

• Etcetera etcetera… (I knew that Latin before law school so it doesn’t count as douche)

No single yes or no confirms if you are “marriage-like” or not. For instance, me living near law school while my wife and kids live here does not end my marriage-like status. A court will look at the whole picture and decide. What this means is that if you have been in a relationship for nearly 2 years, take a hard look at what your intentions are. Possibly come talk to me in office for a free consultation to make sure you are unintentionally causing yourself problems.

"Everything Stays in Whoever's Name It's Registered In."

Reality: Not necessarily.

Under BC's Family Law Act, family property acquired during a qualifying relationship is generally subject to division when the relationship ends, regardless of whose name appears on title.

For example, if one spouse purchased a home or a car or a yacht during the relationship and only their name appears on title, the other spouse may still have a claim to a share of the property's value.

"Common-Law Spouses Can't Receive Spousal Support (aka. Alimony)."

Reality: Hard no.

Caveat: Alimony is the American term, that I am sure you have heard when you watched Judge Judy (No shame in liking Judge Judy here!).  In Canada the equivalent term is spousal support. And it is a toque not a “beanie”.

Section 161 of the FLA sets out 4 objectives of spousal support to

1)         Recognize any advantage/disadvantage between spouses from the relationship/breakdown;

2)         Split between spouses financial consequence of raising child(ren) beyond child support;

3)         Relieve economic hardship; and

4)         Promote economic self-sufficiency of each spouse in a reasonable time.

This leads to two type of spousal support: compensatory and needs based support. 

Compensatory support compensates a spouse for sacrifices they made during the marriage.  The classic example is if a spouse worked three jobs to support the other when they attended medical school. They facilitated the doctor summering on the yacht and should share in that windfall.

Need based support is based on needs. I can do better. Imagine the doctor above remarries, they plan to be together forever and enjoy the yacht each summer. After they split the doctor pays support while the non-doctor tries to get their feet underneath them financially.

"We Never Signed Anything, So the Law Doesn't Apply."

Reality: Ita non (Google said that is Latin for “no so”)

This is almost exactly the opposite of true. The law applies if no agreement is signed, but if you had signed an agreement, you could make it not apply. Cohabitation agreements can provide valuable certainty, but many couples never enter into one. It is common to explicitly state in a cohabitation agreement (prenuptial agreement is another American term), that the purpose of the agreement is to vary the law that would otherwise apply. That law that otherwise applies is the FLA. An it says, spouse separate all property equally (usually), pensions contributions while in the relationship are divided equally, and spousal support may be payable.

A well-drafted cohabitation agreement can often prevent disputes and provide clarity if the relationship later ends. The $2,500ish you spend to get a cohabitation agreement, can often save you thousands after the fact. Yacht doctor would say an pinch of prevention is worth a pound of treatment.

"If We Break Up, We Can Wait Years Before Dealing With It."

Reality: Delay can be dangerous.

Family law claims are often subject to limitation periods; in BC the limitation period is generally two years from the date of separation.  This is a key difference between married and common law spouse, for married spouses the limitation period is two years from the divorce order.

If you are in a common law relationship and have separated waiting too long to obtain legal advice can jeopardize important rights and remedies.

Even if separation is apparently amicable, it is wise to understand your legal position early so that you can make decisions that serve your best interests.

Final Thoughts

The legal consequences of a common-law relationship can be significant. Many people assume that because they never married, they have no obligations to each other when the relationship ends.

If you are approaching your 2 year anniversary, considering separation, or have recently separated, obtaining legal advice early can help you understand your rights and protect your interests.

I have learned that I am supposed to say “this is general information and not legal advice” but the reality is that is very true. Every family situation is unique. That may make this article totally irrelevant to you, but you will only know that if you get legal advice.

 So give me a call and book a free consultation. We have a fancy coffee machine, my latte game is improving daily and I would love to help.