Common law vs marriage | Zukerman Law

A Comparative Analysis of Marriage and Common-Law Relationships in Canada

For couples residing in British Columbia, including those in Surrey, South Surrey, Langley, and White Rock, the decision between marriage and a common-law relationship can be momentous. Both paths offer unique legal and personal implications, and understanding the nuances is crucial for informed choices.

In this blog, we’ll explore the differences, advantages, and disadvantages of marriage vs. common-law relationships in Canada and British Columbia.

Marriage vs. Common Law in BC

Marriage vs. Common Law in BC

The defining factor lies in formal recognition. Marriage requires a legal ceremony with a marriage license, officially establishing a spouse-spouse relationship. Conversely, common-law status doesn’t involve formal procedures. It arises over time when two individuals cohabit in a conjugal relationship for at least two years or less if they have a child together.

Living together in a committed relationship in British Columbia, even without marriage, grants common-law partners legal protections equivalent to married couples upon separation. This means both parties have access to the same legal framework for resolving significant issues like property division, child support, and spousal support.

The provincial Family Law Act is the sole legal guide for common-law partnerships, streamlining the process compared to married couples who might additionally reference the federal Divorce Act. This simplicity does not compromise fairness: the provincial legislation ensures both parties have equal representation during transitions.

In essence, committed cohabitation in British Columbia carries significant legal weight, providing common-law partners with the same protections as married couples when navigating separation.

Establishing Common-Law Status: At what point does a relationship become common law?

Establishing Common-Law Status: At what point does a relationship become common law?

In British Columbia, continuous cohabitation for at least two years is the primary criterion for establishing common-law status. However, cohabitation for any duration qualifies if a child is born to the couple. The exact definitions apply to same-sex couples in B.C.

It’s crucial to note that documentation solidifies this status, making potential future legal proceedings smoother.

Note: British Columbia has no “common law” status; instead, “marriage-like relationship” is used.

Duration Doesn’t Guarantee Common-Law Status in B.C.

While you may have been with your partner for a decade, simply cohabiting for ten years doesn’t automatically grant common-law status in British Columbia. Remember, your relationship must exhibit characteristics of a “marriage-like relationship” alongside the cohabitation requirement for legal recognition as common-law spouses.

Common-Law Marriage Requirements

While crucial for navigating common-law separations in BC, the “marriage-like relationship” concept remains open-ended. No rigid definition or checklist exists, but courts consider specific characteristics to determine if a couple qualifies. Regardless of how long they’ve been together, partners meeting the following criteria might be recognized as living in such a relationship:

  • Pooling of finances to pay expenses
  • Shared meals, household chores, shopping, etc.
  • Physical intimacy
  • Joint purchase of a home or other property
  • Joint bank accounts
  • Provision of financial help to each other
  • Attended counselling together
  • Known socially as “partners” or a “couple”
  • Purchased gifts for each other

Showing all of this is optional to prove common-law status. However, the courts will consider evidence of such elements in a relationship.

Marriage vs. Common Law Pros and Cons

Marriage vs. Common Law Pros and Cons

Ultimately, the “better” option depends on individual circumstances, values, and plans. Consider these points:

Marriage Pros:

  • Strongest legal protections for both partners.
  • Clearer legal rights in case of separation, child custody, and inheritance.
  • May simplify immigration sponsorship.
  • Holds cultural and religious significance for many.

Marriage Cons:

  • Requires a formal ceremony and legal procedures.
  • Assets and debts may become automatically joint, impacting financial independence.
  • Religious or ideological concerns may exist.

Common-Law Pros:

  • Financial independence and more straightforward property division upon separation.
  • No formal commitment or ceremony is required.
  • It may align better with particular religious or personal beliefs.
  • It can provide a trial period before making a legal commitment.
  • Still eligible for certain tax benefits, like pooling charitable donations and family tax cuts.

Common-Law Cons:

  • Weaker legal protections compared to marriage.
  • Proving common-law status can be complex and requires documentation.
  • Potential challenges with immigration sponsorship.
  • Spousal support isn’t automatic, though still possible.

Choosing between marriage and common-law in BC is a deeply personal decision, influenced by spiritual, practical, and financial factors. Some couples seek the sanctity of marriage vows and ceremony, while others prefer a committed partnership without the formality. Regardless of your choice, understanding the legal and financial implications is crucial. Remember, there’s no one-size-fits-all answer – it’s about what works best for you and your partner. Consider a prenuptial or cohabitation agreement if you desire additional clarity and protection. Whether married or common-law, Zukerman Law in BC is here to help navigate separation or answer your questions through an initial consultation.

How Are Common Law Assets Divided in BC?

How Are Common Law Assets Divided in BC?

In British Columbia, when common-law partners split up, things acquired during the relationship get divided like marital property: 50/50! This applies to money, houses, cars, and other possessions. Just like married couples, anything owned before the relationship might be excluded.

If you’ve been together less than two years but have a child, the law focuses on child support and custody, and there isn’t a division of debt or property.

What Is a "No Common Law" Agreement?

What Is a “No Common Law” Agreement?

Thinking a simple signed paper can shield you from common-law status in BC? Think again! While documents titled “no common law” agreements might seem tempting, they’re essentially toothless tigers regarding legal reality.

Here’s the truth: BC courts prioritize objective evidence over romantic intentions. No matter your agreement, your actions as a couple hold the actual weight. Living together, sharing finances, presenting yourselves as a couple – these things trigger “marriage-like relationship” status in the eyes of the law, regardless of any signed agreement.

So, ditch the illusion of a magic legal shield. If you truly want to avoid common-law status, your focus should be maintaining a demonstrably non-marriage-like relationship. This means keeping finances separate, having distinct living arrangements, and avoiding public displays of coupledom. Remember, actions truly speak louder than words in this case.

But wait, there’s more! Even if you stay strictly non-marriage-like, other legal obligations, especially regarding children, might still arise. So, while a “no common law agreement” might offer a false sense of security, consulting a lawyer to understand your situation and potential legal implications is always the most brilliant move.

The Role of Cohabitation Agreements

The Role of Cohabitation Agreements

As cohabitation becomes increasingly common in British Columbia, couples entering into such partnerships should consider the potential benefits of a meticulously drafted cohabitation agreement. While the emotional aspects of embarking on a shared life naturally take precedence, it is prudent to establish clear and enforceable legal arrangements regarding the division of finances, assets, and debts in the unforeseen event of separation.

Similar to a prenuptial agreement for married couples, a cohabitation agreement is a preemptive measure for mitigating future conflicts and emotional distress. By delineating clear expectations and outlining mutually agreed-upon procedures for asset and debt division beforehand, couples can significantly lessen separation’s legal complexities and financial uncertainties.

The document, drafted by a qualified family law lawyer and signed in the presence of a witness, possesses legally binding force, providing both partners with the assurance that their respective interests are protected. This structured approach fosters transparency and responsibility, demonstrating a commitment to navigate the relationship’s positive and challenging phases with forethought and mutual respect.

Conclusion

Ultimately, navigating the path of marriage or common law in British Columbia is a profoundly personal decision informed by your unique values, goals, and aspirations. Remember, there’s no single “right” answer – the key lies in choosing the option that best aligns with your circumstances and vision for your future.

Whether you’re considering marriage, solidifying your common-law status, or seeking guidance amidst separation, the experienced family law team at Zukerman Law is here to empower you with informed decisions and personalized legal solutions.

Contact us today for a confidential consultation and embark on your journey with clarity, confidence, and the security of professional legal support.

author

Stuart Zukerman

Stuart Zukerman, a graduate of the University of British Columbia, has over 32 years of experience in litigation with a focus on Family Law, Personal Injury, Wrongful Dismissal claims, and Collaborative Divorce & Mediation. He has extensive trial experience in divorce, child custody, spousal support, asset division, and ICBC injury claims. As an accredited Family Law Mediator, he helps resolve disputes without court intervention. Stuart has also authored papers on family law and lectured at CLE courses.