In British Columbia, an increasing number of couples choose to build their lives together without formal marriage. Understanding your legal rights and obligations as a common law partner is crucial for protecting yourself, your partner, and your family.
This guide breaks down the key aspects of BC’s laws to help common law couples in BC safeguard their interests.
What Defines Common Law Relationships in British Columbia
A common law relationship refers to two unmarried people living together in a marriage-like partnership. Under British Columbia’s Family Law Act, you are considered common law spouses for property division and spousal support if you meet one of two conditions:
- Living together continuously for over two years in a marriage-like relationship
- Or having a child together, even if living together for under two years
The BC government amended the definition of spouse in 2013 to recognize common law couples. This gives them many of the same rights and obligations as married couples when it comes to dividing property, assets, debts, and spousal support if they separate.
However, common law couples do not have the automatic right to inherit a share of their partner’s estate if they die without a will.
What is a “Marriage-Like Relationship”?
If you have not cohabited for two full years, you must prove you were in a marriage-like partnership to claim common law status. Factors considered include:
- Cohabiting under one roof
- A sexual, conjugal relationship
- Presenting publicly as a committed couple
- Jointly caring for children (if applicable)
- Sharing domestic tasks and home responsibilities
- Joint management of finances and assets
- Supporting each other financially if needed
- Making joint decisions and plans for the future
The court looks at the overall nature of the relationship holistically. Short-term cohabitation for convenience, like roommate arrangements, does not qualify as common law.
How Does the Common Law Status Affect Your Rights in BC?
Once you meet the definition of a spouse, the Family Law Act grants significant rights and obligations if your relationship ends. These are largely the same as those for married couples.
Division of Property and Debt
Any assets, property, or debts acquired jointly or individually during the relationship must be divided equally between both common law spouses upon separation after two years of cohabitation.
This includes the appreciation of the value of any property brought into the relationship by one spouse. It also includes any debts incurred by one or both spouses while common law, such as loans, mortgages, and credit card debt.
Specific assets that remain separate property and are exempt from division include:
- Property owned before the relationship began
- Gifts or inheritances received during the relationship
- Proceeds from a personal injury settlement
- Trust property held exclusively for one spouse
Without a cohabitation agreement, couples cannot agree on an unequal division of assets, favouring one partner over the other during the relationship.
Spousal Support
After living together for over two years, a former common law partner can claim spousal support from the other spouse based on factors like:
- Length of the common law relationship
- Financial means and earning capacity of each spouse
- Standard of living while together
- Child care responsibilities
Courts aim to ensure neither spouse suffers undue financial hardship from the breakup. Support can be paid as a lump sum or periodic payments for an indefinite period or until specific conditions are met.
Child Support and Parenting Arrangements
Both parents have a legal duty to support their children financially after separation. Child support is calculated based on the Federal Child Support Guidelines. Parents must also make arrangements for parenting time and decision-making responsibilities for their children.
Pension and Benefits Division
Pensions and other benefits like RRSPs accumulated during a common law relationship in BC are valued and divided equally between the spouses at separation. This includes Canada Pension Plan (CPP) credits earned by either or both partners while cohabiting.
What Happens When Common Law Partners Separate in BC?
If common law spouses in BC do not have an agreement outlining the division of assets when separating, the default is:
- All property, assets, pensions, and debts acquired during the relationship are divided equally.
- The appreciating value of excluded property that was brought into the relationship must be shared.
- Exempt assets like gifts and inheritances stay with the recipient’s spouse.
- Pensions accumulated while cohabiting are split based on the length of the relationship.
- Debts must be paid jointly, affecting both partners’ credit ratings.
- Spousal support may be awarded based on factors assessed by the courts.
- Child support will be ordered according to Child Support Guidelines if applicable.
- Personal property will be divided equitably.
- The family home will be sold and the proceeds divided, or one partner may buy out the other’s share.
Essentially, both spouses walk away with equal shares of what was accumulated jointly during the common law. This aims to compensate partners who contributed unpaid domestic services and childcare.
However, the property division process often involves negotiations and can still end up in court if agreements cannot be reached. Hiring a lawyer helps ensure your rights are protected.
What Happens When a Common Law Partner Dies?
Common law couples in BC do not share the same legal rights as married spouses when a partner dies.
If Your Partner Dies Without a Will (Intestacy)
If a common law partner passes away without a will, the surviving spouse does not automatically inherit any of their assets, property, or estate. They have no right to make funeral arrangements or administer the estate.
The deceased’s assets pass to their next of kin, which does not include a common law spouse unless specifically named in a will. The only recourse is to contest the will.
However, common law partners may have certain benefits if their spouse dies:
- If cohabiting for over one year, they can receive Canada Pension Plan death benefits.
- They may be eligible for workers’ compensation if their partner died due to a workplace injury.
- They can be designated as the beneficiary of the deceased partner’s life insurance policy, RRSPs, or pensions.
- If named as executor, they can administer the estate according to the will’s directives.
If Your Partner Dies With a Will
If your partner has a will, their estate will be distributed according to its terms. However, if you are a common law spouse who has been left out of the will or feels you did not receive adequate provision, you have the right to challenge it. You can ask the court to vary the will to provide a “just and equitable” inheritance. You must file this claim within 180 days from the date the grant of probate is issued.
How to Proactively Manage Your Legal Status
Common law spouses cannot inherit from a deceased partner’s estate without a will in BC. You have the power to define your own rights and obligations instead of relying on the default legal rules.
Create a Cohabitation Agreement for Unequal Division
A cohabitation agreement is a legal contract signed by both spouses that specifies how property and debt will be divided in the event of separation, and can also address spousal support. This allows you to opt out of the default 50/50 split.
These should be signed before moving in together. However, couples can sign or update an agreement at any time during their relationship.
Create Wills
Both partners should have up-to-date wills that clearly state their wishes and name each other as beneficiaries. This is the only way to ensure your partner inherits from your estate.
Designate Each Other as Beneficiaries
Name your partner as the direct beneficiary on life insurance policies, RRSPs, TFSAs, and pensions. These assets pass outside the estate and are not affected by the will or intestacy rules.
Representation Agreements & Powers of Attorney
To give your partner the legal authority to make healthcare or financial decisions for you if you become incapacitated, you must create specific legal documents:
- Representation Agreement: For healthcare and personal care decisions.
- Enduring Power of Attorney: For financial and legal affairs.
Discuss Funeral and Care Wishes
Partners should openly discuss their end-of-life care preferences and funeral wishes, and preferably put them in writing. However, the surviving spouse won’t have automatic legal authority to make arrangements unless named in a will.
Getting appropriate legal and financial advice is prudent when creating an estate plan as common law partners.
Tax and Benefits Considerations for Common Law Couples in British Columbia
Common law spouses must declare their status for tax and benefits purposes after cohabiting continuously for 12 months. This includes:
Filing Joint Tax Returns
After being together for one year, common law couples must file their taxes jointly under the same household. This can change tax brackets, credits, deductions, and liabilities for each partner.
Reporting Marital Status on Forms
Any government forms requiring marital status must list “common law” after cohabiting for one year. Incorrectly reporting as “single” constitutes fraud.
Impacts on Income Assistance
If one partner gets social assistance, becoming common law can impact the amount and eligibility, depending on the other’s income and assets.
CPP Credits and Payment
Canada Pension Plan contributions and credits are accounted for jointly. A surviving common law spouse qualifies for the CPP death benefit after one year of cohabitation.
Old Age Security
Being on common law can affect Old Age Security pension amounts and repayment requirements based on combined household income.
Other Benefits
Any federal or provincial benefits like GST credits and BC Family Bonus may be impacted by common law status. Income levels determine eligibility.
Essentially, common law couples become one economic family for tax and benefits purposes after 12 months of living together. This is true across Canada.
Latest Statistics on Common Law Couple Families in British Columbia
Common law relationships are increasingly prevalent among Canadian families.
Living Arrangements of Adults Over 15
| Living Arrangement | Percentage |
|---|---|
| Lived Alone | 14.3% |
| Lived as a Couple | 57.5% |
| Lived as a Lone Parent | 10% |
Couples Who Were Legally Married vs. Common Law
| Relationship Status | Percentage |
|---|---|
| Legally Married | 69.8% |
| Common Law | 15.3% |
| One-Parent Family | 14.9% |
Young Adults Aged 20-34 Living with Parents
| Living with At Least One Parent | Percentage |
|---|---|
| Yes | 32.9% |
Clearly, common law couples constitute a significant portion of families and households in modern British Columbia.
Source: Statistics Canada. 2021 Census of Population
The Bottom Line
The laws surrounding common law relationships have evolved significantly in British Columbia over the past decade. However, navigating legal rights and obligations can still be confusing for unmarried partners.
Being aware of how common law status impacts property division, debts, benefits, taxes, and estate inheritance can prevent unpleasant surprises down the road. Seeking legal guidance is prudent before, during, or after a common law relationship.
With proper agreements and estate planning in place, common law couples can clarify responsibilities, protect assets, provide for children, and ensure their partner is provided for in the event of separation or death.
Be sure to also check out our articles for the Common Law Relationship in Canada with other provinces:
FAQs about Common Law Relationships in British Columbia
How long do you have to live together to be common law in BC?
A common law couple in BC is considered spouses for legal purposes after cohabiting continuously for 2 or more years in a marriage-like relationship. Rights kick in on the 2nd anniversary of living together.
What legal rights do common law spouses have in BC?
Common law spouses in BC have equal rights to married couples when dividing property and debt after separation. They also owe each other spousal support and share parental obligations.
Can a common-law partner in BC get spousal support?
Yes, a common law partner in BC is entitled to claim spousal support after separating from a relationship over 2 years, based on factors like length of cohabitation and financial means.
How do common law relationships get dissolved in BC?
A common law relationship in BC ends if the couple separates and begins living apart. A lawyer can help file paperwork and divide assets according to BC laws.
How do I protect my assets when separating from a common-law partner in BC?
Sign a separation agreement with your common-law partner in BC outlining how to divide assets outside of the default 50/50 split. Seek legal advice to protect your rights.
Can a common-law spouse in BC inherit without a will?
No, a common-law spouse in BC has no automatic inheritance rights without a will. The estate goes to the deceased's next of kin unless the surviving spouse contests the will.
Can a common-law partner make medical decisions in BC?
A common law partner in BC has no legal right to make healthcare or end-of-life decisions for their spouse. A Representation Agreement grants authority to make medical decisions.
When can a former common-law partner claim spousal support in BC?
To claim spousal support after a common law relationship ends in BC, you must apply within two years of the date you separated under BC's Family Law Act.
Do common law spouses qualify for bereavement leave in BC?
Yes, under the BC Employment Standards Act, both married and common law spouses can take up to 3 days of unpaid job-protected leave upon the death of their partner.
How do I end a common law relationship in BC?
Common law couples in BC can separate by having one partner move out and document the date you began living apart. A lawyer can help divide assets per BC laws.
Can a common-law partner make funeral arrangements in BC?
A common law partner in BC cannot make funeral arrangements unless appointed executor in a will. A civil marriage automatically grants funeral arrangement rights.
Can a common-law partner in BC contest a will?
Yes, if a common-law partner in BC is left out of their deceased spouse's will entirely or feels their inheritance is inadequate, they can contest the will in court within 180 days.
Can I leave my estate to a common law partner in BC?
Yes, you can leave any portion of your estate to a common law partner in your will in BC. Without a will, common law partners have no automatic inheritance rights in BC.
