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This section concerns common-law relationships and relationships of less than two years' duration that don't qualify as common-law. Even though people in an unmarried relationship have not been formally wed, they may still have many of the same legal rights and obligations as people in a married relationship. Typically, these issues will involve the care and control of children, the payment of support and the division of assets. This chapter will provide a brief introduction to the issues that common-law and other unmarried couples often face when a relationship ends, and discuss a few common misunderstandings about unmarried relationships. Introduction 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 at least two years. In fact, the Family Relations Act really doesn't talk about common-law relationships, it talks about "spouses," and spouses are defined as people who have lived together for two or more years in a "marriage-like relationship." The other group of people the Family Relations Act defines are "parents." Parents are defined as the biological parents of a child and people who qualify as the "spouse" of a parent. Under the Family Relations Act, people who meet the definition of spouse or parent may have certain responsibilities, like the obligation to pay child support, and certain rights, like the right to apply for spousal support or the right to be involved in the parenting of a child, and parents and spouses can be of the same or opposite genders. Parents and Spouses 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.
Under s. 1 of the Family Relations Act, "parent" and "spouse" are defined as follows: "parent" includes (a) a guardian or guardian of the person of a child, or(b) a stepparent of a child if(i) the stepparent contributed to the support and maintenance of the child for at least one year, and(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child; "spouse" means a person who (a) is married to another person,(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender,(c) applies for an order under this Act within 2 years of the making of an order(i) for dissolution of the person's marriage,(ii) for judicial separation, or(iii) declaring the person's marriage to be null and void, or(d) is a former spouse for the purpose of proceedings to enforce or vary an order. (2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child (a) are or were married, or(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender. A number of important points follow from these definitions:
For couples who have not married, the key issue is whether or not they qualify as spouses under the Family Relations Act, as "spouses" have a broader range of rights and obligations than "parents" do. This can be a bit difficult as it's not always clear how long a couple has lived together or whether they were a couple for the whole time they lived together. The act does not specify what "marriage-like" means. For a more complete discussion of this issue, see the Unmarried Couples > Common-Law Relationships chapter. Different Rights and Responsibilities 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:
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. A Few Surprisingly Common Misunderstandings A lot of people seem to have a lot of misconceptions about what being common-law actually involves and how you become common-law. Part of this, I'm sure, comes from television and movies, other are urban myths that get spread during a few pints at the pub. This segment addresses a few of the most common of these myths. The Automatic "Marriage" It is not true that a common-law couple are 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 performed by someone licenced for that purpose. The Accidental Spouse It is not true that you become a common-law couple simply by living with someone for long enough. You must be living together in a romantic, "marriage-like" relationship to become a common-law couple; mere roommates will not become common-law spouses 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. To be crystal clear:
To separate, you just need to decide that your relationship is over and say so. The Common-Law "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. There is no need to get a divorce. Back to the top of this chapter. Site Navigation
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