For the purposes of the provincial Family Relations Act, you are in a common-law relationship if you and your partner have lived together as a couple for more than two years in a "marriage-like relationship." Common-law partners can be of the same or opposite sexes. Relationships that are less than two years' long are not common-law relationship under provincial legislation, although they may qualify for the purposes of federal legislation.

Common-law relationships end when the "marriage-like" quality of the relationship ends, usually when a couple decides to break up. Contrary to popular belief, common-law couples are not married; without a civil or religious ceremony, you are not married and there are no legal steps which must be taken to end the relationship. A common-law relationship is over when it's over! A common-law couple does not need to get a divorce to formally terminate their relationship.

The same idea about separation applies to people in relationships of less than two years' duration. A relationship like this ends when the couple breaks up or stops dating.

Legislation

When married people break up, they are usually concerned about things like spousal support, the division of the family assets, and how the children will be looked after. Common-law couples and other unmarried couples share much of the same problems. From a legal perspective, the difference between married, common-law and other unmarried couples lies which laws apply and, sometimes, how they apply.

• Married couples can apply for relief under both the federal Divorce Act and the provincial Family Relations Act. The Divorce Act doesn't apply to umarried people.
• Common-law couples can only apply for relief under the provincial Family Relations Act, and the sort of relief they can apply for is, generally speaking, limited to relief involving the care and control of children, child support and spousal support.
• Unmarried couples who have been together for less than two years can only seek relief under the provincial Family Relations Act, and the sort of relief they can apply for is limited to relief involving the care of children and child support.
• Unmarried couples are excluded from the parts of the Family Relations Act that deal with property. Unmarried couples can only divide assets under the law of trusts or, in some cases, under legislation like the Partition of Property Act.

Under s. 1 of the Family Relations Act, "parent" and "spouse" are defined as follows:

A number of important points follow from these definitions:

• The biological parents of a child are automatically "parents," regardless of the nature of the relationship between them.
• A "parent" also includes anyone who has "lived in a marriage-like" relationship with a natural parent of a child for at least two years, including straight common-law couples and same-sex common-law couples.
• The whole of the Family Relations Act, except for the parts dealing with the division of property and pensions (Parts 5 and 6), applies to any couple who has "lived in a marriage-like relationship" for at least two years.
• A common-law partner must bring a claim for spousal support within one year after the relationship ends, after which the claim will be barred by statute.
• A claim against a person qualifying as a step-parent must be brought within one year after that person last contributed to the support of the child, after which the claim will be barred by statute.

For couples who have not married, the linch pin is whether their relationship qualifies as a "marriage-like relationship." While the Family Relations Act clearly includes same-sex couples within this definition, it does not specify what "marriage-like" means, only the case law does. For a better discussion of "marriage-like," see the following chapter.

Common-law and unmarried couples, that is, couples who aren't married and don't qualify as common-law, can rely on the provisions of the Family Relations Act for the following purposes:

1. Child Support: unmarried and common-law relationships;
2. Spousal Support: common-law relationships; and,
3. Child Custody, Guardianship and Access: unmarried and common-law relationships.

Making a Choice

Unmarried couples can do all of the things married couples can. They can live together, they can have a child together, they can buy a house together, and they can have relationships that last for decades and look, in all respects, exactly like married relationships. Why is there a difference in the way the law treats unmarried couples?

In the 2003 Supreme Court of Canada case of Walsh v. Bona, the court was asked to decide whether it was unfair to deny unmarried couples the benefits of certain legislation that only married couples had. In its decision, the court held that regardless of how the similar the parties' relationship appeared to a married relationship, the parties had nevertheless made the choice not to become married, and the fact that they chose not to marry meant that they had also chosen not to become a part of the class of persons to whom that legislation applied.

Becoming married implies a certain level of committment to one another that simply living together usually does not. The parties to a marriage expect that their relationship will be permanent, a view which is widely accepted in society. This view of marriage is not always shared by unmarried couples, some of whom take the political or philosophical view that formal marriage is personally inappropriate, morally objectionable, fundamentally misogynistic or simply archaic and out of step with contemporary society.

Nevertheless, until the governments of Canada and British Columbia open the laws to all types of relationship, a distinction will continue to be drawn between married and unmarried couples. The following is a brief summary of the major distinctions:

	Married Couples	Common-Law Couples	Other Couples
Divorce	Yes
Care of Children	Yes	Yes	Yes
Child Support	Yes	Yes	Yes
Spousal Support	Yes	Yes
Family Assets	Yes
Trust Claims to Assets	Yes	Yes	Yes
Government Benefits	Yes	Yes
Wills & Estates	Yes	Yes

The Alternatives to Marriage Project

The Alternatives to Marriage Project is an interesting American organization seeking equality for unmarried couples, including straight and same-sex couples, with married couples. It takes the view that people who chose not to marry or cannot marry deserve equal rights and equal protection under the law as married couples. Their website offers a broad array of information for unmarried couples, visit it at www.unmarried.org.

Back to the top of this chapter.

"Marriage"

It is not true that a common-law couple is automatically "married" once they've lived together for a certain amount of time, nor is there any such thing as a "common-law marriage." You can have lived together for twenty years and still not be legally married; a common-law couple is never "married" unless there is an actual marriage ceremony.

It is not true that you become a common-law couple simply by living with someone. You must be living together in a romantic, "marriage-like" relationship to become a common-law couple; mere roommates will not become a common-law couple by accident.

Separation and the "Legal Separation"

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in a common-law relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner leaves, boom, you're separated.

"Divorce"

It is not true that common-law couples need to be divorced. Once you've decided to separate, the relationship is over, regardless of how long the relationship may have been.

Back to the top of this chapter.

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