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This chapter will briefly discuss the different rights and obligations that may arise as a result of married relationships, common-law relationships, and relationships that are shorter than two years and don't qualify as common-law. I. Married Couples When a marriage ends, there are a lot of things that need to be dealt with. If there are children, some arrangement must be made which deals with their care and control. Child support will normally be payable by one spouse to the other, and sometimes spousal support is also required. As well, the family assets will have to be divided in some way, together with the family's debts. These issues usually only crop up once a couple has separated, and almost always need to be dealt with before the court grants the divorce that's necessary to end a marriage. While this website talks a lot about the courts and the court process, you do not have to go to court to resolve your dispute. All or just some of these issues can be settled in a separation agreement (a private contract between spouses) reached through negotiation, mediation, or the collaborative law process. The only reason why you must go to court is to get a divorce order. A. Marriage As a result of the Civil Marriage Act, same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors. See the chapter Marriage & Divorce > Marriage for more information about the capacity to marry, valid marriages and invalid marriages. B. Non-Canadians Marrying in Canada Anyone from anywhere can get married in Canada, so long as they meet the Canadian criteria for a valid marriage. However, while Canadian marriages are certainly legal in Canada, they may not be recognized as such at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country. C. Children The four essential subjects that need to be dealt with in determining how the children will be parented after separation are:
Married spouses can deal with these issues under either or both of the federal Divorce Act, which only applies to married couples, and the provincial Family Relations Act, which applies to all parents. See the section Children for more information on all of these issues. D. Child Support Child support is paid to the spouse who has the children for most of the time to help defray the costs involved in the day-to-day care of the children. This basic amount is considered to cover the bulk of the children's expenses, including their share of the rent and utilities, clothing, school supplies and do forth. Broadly speaking, the amount of support which must be paid is the amount required by the Child Support Guidelines, which has tables showing how much must be paid based on the number of children and the payor's income. Child support can even be payable between parents who share their children's time equally, so long as there is a difference between their respective incomes, although it won't be payable in the exact amount set out in the Guidelines tables. There are a number of other reasons why the base table amount won't be payable, such as where the payment of the table amount would cause undue hardship to the payor or the recipient, or where the payor has the children for 40% or more of their time. While the base table amount of support set out by the Guidelines covers a fairly wide range of costs, it doesn't cover unusual and significant costs, for things like daycare, orthodontics, or private school tuition. These sorts of expenses, and other expenses that qualify under s.7 of the Guidelines as "special and/or extraordinary expenses," are shared between the parents in proportion to their incomes. Married spouses can deal with child support under either or both of the federal Divorce Act and the provincial Family Relations Act. The Child Support Guidelines apply to child support under both acts. See the section Child Support for more information on this subject. E. Spousal Support Spousal support is paid to defray the day-to-day living expenses of a spouse who has suffered an economic disadvantage because of the marriage or the breakdown of the marriage. The amount of support that will be payable, if any, will be largely determined based on the dependent spouse's legitimate needs and the paying spouse's ability to pay. Generally speaking, spousal support will be payable for a limited period of time because of each spouse's obligation to become independent and financially self-sufficient when their marriage breaks down. Marriage is, after all, neither a pension plan nor an insurance policy. However, where a marriage was particularly long, a spouse suffers from a disability or illness, or a spouse is close to retirement, spousal support can be payable indefinitely. When a person is found to be entitled to receive spousal support, the amount of support and the length of time for which it will be paid can also be calculated using the Spousal Support Advisory Guidelines. Married spouses can deal with spousal support under either or both of the federal Divorce Act and the provincial Family Relations Act. The Advisory Guidelines can be used to determine spousal support under both acts. See the section Spousal Support for more information about spousal support and the Advisory Guidelines. F. Family Assets and Debts Family assets are divided under the Family Relations Act. The act sets out a presumption that assets which qualify as a "family asset" — and not all do — should be divided equally. A family asset is anything acquired by either spouse before or during the marriage which is normally used for a family purpose. There are some circumstances in which family assets are divided unequally, such as in the cases of a brief marriage, a disproportionate contribution by one spouse over the other, or if a dependent spouse will be unable to become self-sufficient without a greater share of the family assets. Family debts are usually the shared responsibility of both spouses, so long as the debts were incurred for a family purposes, such as for a family holiday or to buy groceries. If a debt was incurred by one spouse for purely personal reasons, like a trip to Las Vegas, that debt will not be shared by both spouses. See the section Family Assets for more information on this topic. G. Separation Spouses separate when they decide that their marriage is at an end. Most often, one of the spouses moves out and finds somewhere else to live, but it is possible to be separated yet still live under the same roof. There is no such thing as a "legal separation," and you do not need any sort of court order or document to establish that you are separated. Once you and your spouse have separated, you can begin to date again and see other people, and it will have no impact on your position in court. While sex with someone other that your spouse is technically adultery, no one except your spouse and your in-laws are likely to give a damn. Be warned: it is possible to find yourself in a common-law relationship with someone new while you are still technically married to someone old! See the chapter Marriage & Divorce > Separation for more information on this topic. H. Divorce The Divorce Act allows married couples to get an order for their divorce, and you can't get divorced without a court order.. There are three reasons why a court will make a divorce order:
To get a divorce, at least one of the spouses must have lived in the province whose courts are making the divorce order for at least one year before the divorce case was started. For more information about divorce, including an overview of the do-it-yourself divorce process and the court forms necessary to complete that process, see the chapter Marriage & Divorce > Divorce. Back to the top of this chapter. II. Common-Law Couples Almost all of the issues that married couples have to deal with when their relationships end are faced by common-law couples when their relationships end. The only differences lie in how the law treats common-law versus married couples, and, of course, there's no need to get a divorce to legally terminate a common-law relationship. Not all people who live together are "common-law," and sexual orientation has nothing to do with whether a couple does or does not qualify as common-law. Common-law status is all about the rights and obligations that are given by different pieces of legislation to people who qualify as "spouses" under that legislation. Federal legislation, for example, gives common-law partners death benefits under the Canada Pension Plan. Provincial legislation gives people qualifying as spouses benefits under the Medical Services Plan and the Estate Administration Act, and support obligations under the Family Relations Act. That's all common-law status is: do you qualify as a "spouse" for the purposes of a particular piece of legislation? The general rule for most British Columbia laws is that a couple will qualify as spouses if they have lived together in a "marriage-like relationship" for at least two years. For most federal legislation, a couple must have lived together for only one year. Most laws also say that a couple ceases to qualify as spouses within a certain amount of time from the end of the relationship, and it's important to know what that limit is. Under the Family Relations Act you stop being a spouse one year after separation; under the Estate Administration Act you stop being a spouse the day you separate. See the chapter Unmarried Couples > Common-Law Relationships for more information about common-law status and federal and provincial benefits. A. Children and Child Support The same rules about the payment of child support and the care and control of children that apply to married spouses apply to common-law couples. Child support will be determined according to the Child Support Guidelines, and issues about custody, guardianship and access will be dealt with under the Family Relations Act. A common-law spouse who isn't the natural parent of a child will not be liable to pay child support unless:
See the sections Children and Child Support for more information. B. Spousal Support If you qualify as a spouse under the Family Relations Act, you can claim spousal support under that act. The same general rules about spousal support apply to common-law couples as apply to married couples, but with two big exceptions:
When someone is found to be entitled to receive spousal support, the amount of support and the length of time for which it will be paid can be calculated using the Spousal Support Advisory Guidelines. See the section Spousal Support for more information about spousal support and the Advisory Guidelines. C. Assets If a common-law couple jointly own an asset, there will be a presumption that they are both entitled to share in the value of that asset. If one person contributed more than the other to a jointly-owned asset, that person may be entitled to claim a greater share of that asset. Real estate that is jointly owned can be divided under the provincial Partition of Property Act. Unmarried couples are expressly excluded from the parts of the Family Relations Act that deal with the division of assets. As a result, a party who seeks an interest in an asset owned only by the other party must do so under the law of trusts. Generally speaking, trust claims are hard to prove and, when successful, are rarely as generous as the result would be for married couples dividing assets under the Family Relations Act. See the chapters Unmarried Couples > Common-Law Relationships and Family Assets > Dividing Assets for more information on this topic. D. Separation A common-law relationship is over when one or both parties decide that it's over and say so. While it is possible to be separated yet still live under the same roof, the time periods set out in the Family Relations Act begin to run when the "marriage-like" quality of the relationship ends. There is no such thing as a "legal separation," and you do not need any sort of court order or other document to establish that you are separated or to otherwise formally terminate a common-law relationship. Likewise, a couple who are not married have no need to get divorced when their relationship ends, no matter how long they have been together. While people often use the phrase "common-law marriage" to describe common-law relationships, a common-law couple are not legally married unless they get married. Back to the top of this chapter. III. Other Relationships If you and your partner are not married and have not lived together for at least two years, you are not in a common-law relationship for the purposes of the Family Relations Act, and the intersection of family law in your life will be mercifully brief. The only claims people living together in this sort of relationship have against each other concern children and property. Remember that while provincial laws usually only treat a couple as "spouses" if they've lived together for two years or more, most federal laws require that a couple have lived together for only one year to qualify as "spouses." That means that a couple who has lived together for at least one year may qualify for certain federal benefits, like CPP survivors' benefits, they generally won't qualify for provincial benefits. See the chapter Unmarried Couples > Common-Law Relationships for more information about federal benefits. A. Children and Child Support The same rules about the payment of child support and the care and control of children that apply to common-law couples apply to anyone who is a natural parent, regardless of the nature of that person's relationship with the other natural parent. Each party will be concerned about issues like custody, guardianship, access and child support. These issues will be dealt with under the Family Relations Act, and support will be determined according to the Child Support Guidelines. Note that non-parents in unmarried relationships that don't qualify as common-law will not be liable to pay child support for the other party's children. Non-parents may nevertheless make claims for custody, guardianship and access, however doing so may result in the non-parent qualifying as a parent liable to pay child support. See the sections Children and Child Support for more information. B. Spousal Support People in unmarried relationships that don't qualify as common-law cannot claim spousal support from each other. C. Assets The rules that apply to common-law couples about property apply to all unmarried couples, common-law or not. In most cases, the sort of property interests these couples will have will be limited to assets that were bought jointly, and claims to assets only by one party will have to be brought under the law of trusts. See the chapter Family Assets > Dividing Assets for more information on this topic. D. Separation An unmarried relationship is over when one or both people decide that it's over and say so. There is no such thing as a "legal separation," and you do not need any sort of court order or other document to establish that you are separated or to otherwise formally terminate this sort of relationship. Since an unmarried couple is not married, there is no need to get divorced; there's no marriage to be divorced from. Back to the top of this chapter. Site Navigation
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