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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 lasted for less than two years. 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 a divorce. 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 — through mediation, or through the collaborative law process. The only reason why you must go to court is to get a divorce order. Marriage Same-sex couples can now legally marry throughout Canada, following the passage of the federal government's Civil Marriage Act. Of course, not everyone can marry, such as close relatives or minors. See the chapter "Marriage & Divorce > Marriage" for more information about valid and invalid marriages. Non-Canadians Marrying in Canada Anyone from anywhere can get married in Canada, so long as they meet Canadian standards for valid marriages. However, while such marriages might be legal here, 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 marriage may not have the legal effect of straight marriages in that country. In July 2006, for example, a lesbian couple wedded in Canada tried to have the courts of England, their country of residence, recognize the Canadian marriage and failed. 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 and the provincial Family Relations Act. See the section "Children" for more information on all of these issues. 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 set out in 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 amount won't be payable, such as where the payment of the table amount would cause undue hardship on the payor or the payee, or where the payor has the children for 40% or more of their time. While the base 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 the Guidelines as "special and/or extraordinary expenses" are shared between the parents based on their respective incomes. Married spouses can deal with child support under either or both of the federal Divorce Act and the provincial Family Relations Act. The Guidelines apply to child support under both acts. See the section "Child Support" for more information on all of this subject. 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 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 only a limited time because of the obligation of each spouse to become independent and self-sufficient. Marriage is, after all, not a pension plan. 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 an entitlement to receive spousal support is found, the amount of support and the length of time for which it will be paid can also be calculated using the draft proposed 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. See the section "Spousal Support" for more information. Family Assets 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 a family holiday or buying 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. 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 while you are still technically married! See the chapter "Marriage & Divorce > Separation" for more information on this topic. Divorce The Divorce Act allows married couples to get an order for their divorce. There are three reasons why a court will make a divorce order:
To get a divorce one of the spouses must have lived in the province whose courts are making the divorce order for at least one year. For more information about divorce, including an overview of the desk order divorce process, see the chapter "Marriage & Divorce > Divorce." Back to the top of this chapter. Common-Law Couples All of the issues that married couples face when their relationship ends are faced by common-law couples when their relationship ends. The only differences lie in how the law treats common-law versus married couples, and, of course, there is no need to get a divorce. 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. Federal legislation, for example, gives common-law partners death benefits under the CPP. Provincial legislation, gives benefits under MSP and the Wills Variation Act, and obligations under the Family Relations Act. That's all common-law status is; there's nothing else to it. The question you must ask yourself is: "Do I qualify as a common-law spouse for the purposes of ______________ legislation?" The general rule is that for the purposes of most British Columbia legislation, a couple has common-law status 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. See the chapter "Unmarried Couples > Common-Law Couples" for more information about common-law status and federal and provincial benefits. 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. Note that a non-parent will not be liable to pay child support unless:
See the section "Child Support" for more information. Spousal Support If you qualify as a common-law couple under the Family Relations Act, you can make a claim for spousal support under that act. The same rules will apply to common-law couples as apply to married couples. The Divorce Act does not apply to common-law couples. When an entitlement to receive spousal support is found, the amount of support and the length of time for which it will be paid can also be calculated using the draft proposed Spousal Support Advisory Guidelines. Note that an application for spousal support must be brought within one year from the date that the "marriage-like" quality of the relationship ended. See the section "Spousal Support" for more information. 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 will 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 by the other party must do so under the law of trusts. Since trust claims of this sort are based on the common law rather than on a piece of legislation, there is a much longer time period within which trust claims must be brought. Generally speaking, trust claims are hard to prove and do not provide as much of a reward as do claims made under the Family Relations Act. See the chapters "Unmarried Couples > Common-Law Couples" and "Family Assets > Dividing Assets" for more information on this topic. Separation A common-law relationship is over when the parties decide that it's over. 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. See the chapter "Marriage & Divorce > Separation" for more information on this topic. Divorce 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 these sorts of relationships, a common-law couple are not legally married unless they get married, and accordingly there is no need to get a divorce. Back to the top of this chapter. People in Relationships of Less than Two Years If you and your partner are not married and were in a relationship that was less than two years' long, you were not in a common-law relationship for the purposes of the Family Relations Act, whether you lived together or not, 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 have to do with 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 Couples" for more information about federal benefits. 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 couples who are parents, regardless of whether they are in a relationship that qualifies as common-law. Each parent 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 this sort of relationship will not be liable to pay child support for the other parties' child. Non-parents may nevertheless make claims for custody, guardianship and access. See the sections "Children" and "Child Support" for more information. Spousal Support People in relationships that are less than two years' long cannot claim spousal support. Assets The rules that apply to common-law couples about assets also apply to couples who do not qualify as common-law. In most cases, the sort of property interests an unmarried, non-common-law couple will have will be limited to assets that were bought jointly. See the chapter "Unmarried Couples > Common-Law Couples" for more information on this topic. Separation An unmarried relationships is over when the couple decide that it's over. 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. Divorce Since an unmarried couple was never 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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