How Common is a Common Law Relationship?

 Under the Family Law Act in BC, a couple is considered to be in a common law relationship if they have lived together in a marriage-like relationship for a continuous period of at least two years. If the couple has lived together for less than two years, they could still be considered common-law spouses if they have a child together. It sounds simple, but there are many factors involved that need to be considered before determining whether the relationship was “marriage-like”.  Fortunately, the courts have provided the following factors to consider in order to determine whether a relationship is “marriage-like”:

Factors to Consider

1. Shelter: Did the couple live together? Did they have meals together and spent time together like a couple, or was the cohabitation more casual, like an arrangement with a roommate?
   
   

2. Intimate and Personal Behaviour: Did the couple maintain an attitude of fidelity towards each other? Did they buy gifts for each other on special occasions?
   
   

3. Services: Did the couple share chores and expenses of daily living?
   
   

4. Social: Did the couple participate together or separately in community activities? How did they express the relationship to family and friends? How did the couple’s family and friends view the relationship? Did they exchange rings or write letters of affection that confirmed the commitment to each other?
   
   

5. Economic Support: Did the couple have joint bank accounts? Did they co-own property?
   
   

6. Legal issues: Did the couple identify each other as spouses on their tax returns, leases, Wills, or other legal documents?
   
   

Maintaining Legal Independence

It is important to note the factors to consider are not a “checklist” in which all factors need to be met.  The courts will evaluate the relationship and balance the factors listed above. The best way a person can protect themselves from unintentionally being considered a common law spouse is to create clear boundaries between one another. Some examples are:

1. Identify each person as single on tax returns;
   
   
2. Have separate bank accounts;
   
   
3. Split rent and household expenses 50/50; and
   
   
4. Refer to each other as boyfriend and girlfriend.

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Spousal Rights and Protections

Once two people are in a common law relationship, they have the same legal rights and protections as if they were married. These legal rights include:

1. 50/50 Family Debts and Assets;
   
   
2. Spousal support; and
   
   
3. Child support.
   
   

In a breakdown of a relationship, spouses are entitled to a 50/50 split of shared debts and assets. What this means is anything either person acquired before the relationship and after the end of the relationship belongs to that person. Property acquired together during the relationship would be considered a family asset and is subject to equal division, unless either person is able to prove it should not be considered a family asset. This may include property such as real estate, furniture, cars, pensions, bank accounts, insurance policy payments, and an interest in a business. Some exceptions to the family asset presumption include inheritances and gifts.

Also, any property either person brings into a relationship will become a family asset and the increased value to the property is subject to the 50/50 split. For example, imagine Spouse A owned a house valued at $500,000 in only their name when Spouse B moved in. Spouse B lived there for 3 years before they decided to split up. At the time of the separation, the house increased in value to $600,000. Spouse B will likely be entitled to half of the increased value during those 3 years: $50,000.

Similarly, any debts a person takes on during the time two people live together is considered a shared family debt, regardless of whose name the debts are in. In situations where you had to incur debt after separation to take care of the family property, this debt will also be considered a family debt.

Any entitlements to spousal support and child support are governed by the Spousal Support and Child Support Guidelines maintained by the Department of Justice. The Guidelines consider a number of factors such as the spouses’ respective incomes, number of children, and where the children will be living. Any agreement a person may have with their spouse for child support should be in accordance with the Federal Guidelines, otherwise, they are required to give a rationale for the shortfall.

If you think you are or were in a common law relationship and have questions about your legal rights, please feel free to give us a call to discuss. All consultation are held in strict confidence.

Know Your Rights

At Lambert Law, we recommend seeking legal advice to help guide you and protect your rights.   If you would like to learn more about your rights, we would be pleased to meet with you and answer your questions.  Contact us for a free, no obligation consultation.

Note to Reader:
This blog post is made available by the lawyer or law firm publisher for educational purposes only to provide general information and understanding of the law, not to provide specific legal advice. By using this blog, you understand that there is no client-lawyer relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed lawyer.