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.
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.
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: Simply cut off financial support – especially if you were the primary bread winner 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 support 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: 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.