Ending Common Law Relationships In British Columbia - Zukerman Law

Ending Common Law Relationships In British Columbia

The laws in British Columbia regarding the rights of Common Law spouses to Property and Debt Division changed significantly in 2013. Here is an overview of what is a Common Law Spouse, their rights and any differences to married couples.

If two people have lived together in a marriage-like relationship for two or more years, they have entered into a common law relationship. In the event of a separation, an unmarried spouse has all of the same rights and obligations as if they were legally married.

What Happens If You Break Up with Your Common-Law Partner?

What Happens If You Break Up with Your Common-Law Partner?

In British Columbia, the dissolution of a common-law relationship triggers legal consequences equivalent to divorce for married couples. This encompasses division of property, determination of parenting arrangements and child support obligations, and potential entitlement to spousal support. It’s crucial to remember that the Family Law Act governs the rights and responsibilities of unmarried individuals during separation. At the same time, married couples might be subject to the Family Law Act and the Divorce Act, presenting strategic considerations regarding which legal framework offers optimal outcomes.

Understanding Common Law Separation BC

Understanding Common Law Separation BC

Under the BC Family Law Act, when common law couples separate, each spouse is entitled to 50% of the growth in equity in each spouse’s assets. This begins from the date they began cohabitating, or the date of Marriage, until the date of separation or until the date that the assets are divided. So regardless of which spouse owns it, the growth in equity in assets owned by either spouse is equally divided just as is the growth of equity in RRSPS, Pensions, Savings, chattels, family property, etc.

The debt that either spouse had on the date of cohabitation or marriage remains their own debt – but the growth in debt incurred by either spouse over the course of the relationship is generally subject to a 50/50 division just as with the assets.

During a legal separation, whatever equity each party brought into the relationship is preserved and excluded from division, as long as that equity can be traced into an asset that exists at the dte of separation. If it would be significantly unfair to divide any given asset or debt on a 50/50 basis, the court may order unequal division of that asset or debt. The spouse arguing that equal division would be significantly unfair, has the onus of proving why an equal division would be significantly unfair based on a variety of factors.

Factors that may be considered to establish the unfairness of an equal division include:

  • The length of the relationship
  • Prior verbal or written agreements
  • One spouse’s contribution to the career of the other
  • How debt was incurred
  • Did the efforts of one spouse increase the value of an asset
  • Did the efforts of one spouse decrease value or give away an asset or incurred tax liabilities
  • Any other factor that the court finds would cause an equal division to be significantly unfair

When considering the division of assets or the fairness of a separation agreement, the court also looks at how one person’s income earning capacity may have been impacted by the role they took on during the relationship. These circumstances help to determine whether XXX spousal support or alimony should be ordered.

What Is a Common-Law Spouse Entitled to in BC?

What Is a Common-Law Spouse Entitled to in BC?

Since 2013, the British Columbia Family Law Act has recognized the legal rights of common-law partners on par with married couples in matters of property and debt division upon separation.
Couples cohabiting for two years or more hold the same legal rights as married couples regarding property and debt division. This includes a 50/50 split of assets and liabilities accumulated during the relationship, excluding pre-existing property, inheritances, and gifts.
Spousal support may be awarded to a common-law partner under certain circumstances.
Common-law partners are entitled to an equal share of property acquired during the relationship, similar to married couples. This applies to assets accumulated after the two-year threshold.
For couples cohabiting for less than two years with a child together, while parental responsibilities are determined by the Family Law Act, property and debt division typically does not occur.

Can You Have a Common-Law Spouse if You Are Still Legally Married in BC?

In British Columbia, the legal recognition of a common-law relationship hinges on a clear separation from a spouse. If either party maintains a marital relationship with their existing spouse, cohabitation and the subsequent establishment of a common-law partnership cannot be legally recognized. This signifies the importance of distinct spousal separation before embarking on a new common-law relationship to ensure clarity and legal validity.

The Do’s and Dont’s of Separating

The Do’s and Dont’s of Separating

It can be difficult for an unmarried couple or married spouses to navigate the delicate legal issues involved in a break-up. Experienced family law counsellors and divorce lawyers provide a few key tips to help ease the process:

Don’t

  • Don’t: Simply cut off financial support – especially if you were the primary breadwinner in the relationship.  There’s nothing that upsets a judge more than hearing about a bully who has cut off his or her spouse from what was, until separation, a historically stable and regular form of financial support
  • Don’t: Refuse to allow or fail to exercise ongoing regular parenting of the children.   The law favours the parent who supports shared parenting where it is in the children’s best interests.
  • Don’t: Act from emotions. In any contest or dispute, the worst thing you can do is act without first thinking and getting as much objective advice as possible before taking any actions. Family and friends are great, but they are not objective and they are unfamiliar with the law. Take a step back and get professional advice to help decide your next best step.
  • Don’t: sign or agree to anything without legal information and legal advice.

Do’s

  • Do: Keep and obtain copies of as many documents and records as possible. Financials, loan applications, texts, emails, social media posts should all be obtained and preserved.
  • Do: Make full financial disclosure in order to ensure that whatever settlement is reached cannot later be challenged due to non-disclosure or misrepresentation
  • Do: Communicate, negotiate, mediate or otherwise work things out fairly and reasonably
  • Do: Get legal advice before you reach any final settlement so that you understand all of your rights as well as all of your obligations (including spousal and child support obligations or entitlements).

At Zukerman Law Group, our team of Surrey Family law lawyers and Paralegals can provide you with a free initial consultation to help you understand your rights and obligations arising from a separation and help you negotiate a fair resolution of your break up.

The Value of Cohabitation Agreements for Common-Law Partners in British Columbia

Cohabitation agreements hold significant utility for common-law couples in British Columbia, both before and after cohabitation commences. These agreements proactively address critical financial issues like income and asset/debt division in case of a future separation.

Given the potential for emotional volatility during separation, cohabitation agreements offer a valuable tool for mitigating disputes and establishing clear guidelines for navigating independent lives. Like prenuptial/postnuptial agreements for married couples, these instruments are gaining popularity among BC partnerships.

It’s essential to emphasize that cohabitation agreements require drafting by a qualified family lawyer and witnessing by a third party for legal enforceability. This ensures the agreement adheres to legal parameters and safeguards the interests of both individuals.

By proactively utilizing cohabitation agreements, common-law partners can approach their relationship with greater clarity and confidence, knowing their financial future is outlined in a mutually agreed-upon framework, promoting smoother transitions in case of separation.

How to Avoid Common-Law : Opt Out of Common-Law in BC

How to Avoid Common-Law : Opt Out of Common-Law in BC

A common misconception exists around “no common-law” agreements offering definitive protection in British Columbia. While such contracts might express the partners’ intentions, they hold limited weight in court proceedings. Judicial precedent prioritizes a relationship’s objective, observable characteristics over the subjective desires expressed in such documents.

Simply stating your non-desire for common-law status is insufficient; tangible evidence demonstrating the absence of a “marriage-like” relationship is crucial.

Failing to meet these criteria and relying solely on a “no common-law” agreement puts your future rights and finances at risk. Seeking legal guidance and understanding the nuanced framework of BC’s family law is paramount in safeguarding your interests in such situations.

Actions Speak Louder Than Words

While the allure of a simple agreement declaring “no common-law” relationship might seem appealing, such documents hold precarious legal weight in British Columbia, especially Surrey, Langley, and White Rock. Unfortunately, signing such an agreement does not guarantee protection from potential common-law recognition in court.

Judicial precedent prioritizes a relationship’s objective “marriage-like” nature over the individuals’ subjective intentions. Simply stating your desire to avoid common-law status is insufficient; you must prove that your relationship lacked the characteristics of a common-law partnership.

Establishing your argument against common-law status becomes significantly easier when the relationship is brief, devoid of children, and characterized by distinct financial arrangements. This minimizes complexities arising from shared assets and parental responsibilities and potentially blurs the lines of financial independence, strengthening your position in demonstrating the absence of a “marriage-like” relationship.

Understanding that courts prioritize actions and tangible evidence over mere written statements is crucial. For definitive protection, legal guidance and a comprehensive understanding of BC’s family law framework are highly recommended.

In conclusion, while the option of a “no common-law” agreement exists, it is not a reliable safeguard against potential legal recognition as a common-law partner in British Columbia. Consulting with Zukerman Law to explore more secure strategies and navigating the nuances of your specific situation is essential for ensuring clarity and protecting your rights.

How to Prove Common-Law in BC?

How to Prove Common-Law in BC?

Establishing your common-law status in British Columbia requires demonstrating a “marriage-like” relationship for at least two consecutive years. While simply living together or having a romantic relationship doesn’t suffice, the point is that living like a married couple without a formal ceremony can still qualify. Even separate residences are possible with the proper evidence.

Key Factors Judges Consider

  • Cohabitation: While not essential, living under the same roof strengthens your case.
  • Shared finances: Joint bank accounts, bills, and expenses contribute significantly.
  • Mutual support: Caring for each other during illness or shared responsibilities further solidifies your bond.
  • Public recognition: Holding yourselves out as partners, even on social media, is helpful.
  • Shared commitments: Joint property, pets, or vehicle ownership demonstrates a deeper connection.
  • Frequency of contact: Regular communication, mainly during separation, showcases the relationship’s nature.

Gathering Evidence

  • Photos: Document special events, holidays, and everyday moments together.
  • Tax returns: Listing yourselves as common-law on tax forms adds weight to your claim.
  • Financial records: Joint leases, rental agreements, shared bills, and receipts strengthen your case.
  • Communication records: Phone logs, texts, and messages reflecting daily contact and emotional connection are valuable.
  • Social media posts: Publicly referring to each other as partners or using terms like “husband” and “wife” can be helpful.

Remember that not every factor is mandatory, and each relationship is assessed individually.

Also, evidence should span at least two years to demonstrate the relationship’s duration.

By understanding these key points and gathering relevant evidence, you can navigate the process of proving your common-law status in British Columbia with greater confidence. Consulting a lawyer for personalized guidance is highly recommended.

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.