Common Law in British Columbia 2024: A Complete Legal Guide

Common law relationships are increasingly prevalent in British Columbia. With more couples choosing to cohabit and start families without getting married, it is essential to understand how BC’s laws apply to common-law couples.

This comprehensive guide explains the rights and responsibilities of common-law spouses in BC. It covers topics including:

• What constitutes a common law relationship
• How your rights change after two years of cohabitation
• Dividing property and debts upon separation
• Spousal and child support obligations
• What happens when a common law partner dies
• Protecting your assets with a cohabitation agreement
• Tax and estate planning considerations
• The latest statistics on common law families in BC

Let’s examine how common-law couples can navigate BC’s legal landscape and safeguard their interests.

What Are 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, couples who cohabit for over two years or have a child together are considered common law spouses.

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.

The BC government amended the definition of spouse in 2013 to recognize common law couples. This aimed to protect the rights of unmarried partners who contributed to the relationship or gave up opportunities to support their partner.

However, BC’s laws can still be confusing for common-law couples. It is wise to understand your rights and responsibilities to avoid unpleasant surprises.

Determining Common Law Status in British Columbia

You become common law spouses in BC by:

• 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 day you began living together is counted as the start date for accumulating joint assets and property under the Family Law Act.

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 Common Law Status Affects Your Rights in British Columbia?

Once you are common law spouses under BC’s Family Law Act, you have extensive rights and obligations should you separate, including:

Equal 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 exempt from division include:

• Gifts or inheritances received during the relationship
• Proceeds from a personal injury settlement
• Property owned prior to becoming common-law spouses
• 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

If you had a child together during a common law relationship, both parents are responsible for financially supporting the child even if they separate.

Child support amounts are determined based on set guidelines and the paying parent’s income level. Courts ensure support meets the child’s needs.

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.

Tax and Insurance Implications

• Common law couples must jointly file federal tax returns after one year of cohabitation and report their status accurately to avoid tax evasion penalties.
• Insurance coverage on things like home, auto, and health may need to be adjusted after becoming common law spouses.
• Debts taken on by one partner can negatively impact the other’s credit rating if payments are missed.

Estate Division If One Partner Dies

Unlike married spouses, common-law partners do not inherit automatically from each other’s estate in BC.

If your spouse dies without a will, you have no right to their assets. If excluded from a will, you must contest it in court within 180 days to claim an inheritance, which is hard to secure.

This makes estate planning essential for common-law couples, as we will discuss later.

Opting Out of Default Common Law Obligations in BC

You can customize or opt out of default common law property division and spousal support rules in BC by:

Signing a Cohabitation Agreement

A cohabitation agreement signed by both spouses lets you outline how to divide assets and debts if you separate down the road. It can specify an unequal division or opt out of spousal support.

These should be signed before moving in together. However, couples can sign or update an agreement at any time during their relationship.

Creating a Separation Agreement

When ending a common law relationship, spouses can sign a separation agreement outlining how to divide property, assets, debts, and spousal support in lieu of going to court.

This avoids the automatic 50/50 property split. However, courts still assess agreements for fairness if challenged later.

Documenting Shared Expenses

Keeping records of shared expenses and financial contributions made toward joint assets while living together can help establish equitable division later if needed.

For instance, documenting mortgage payments over the years shows each party’s financial stake in a shared home.

Living Apart Under One Roof

Couples can live apart under one roof and adequately document living separate lives to avoid meeting the definition of common law spouses in BC. However, this rare arrangement should be discussed with a lawyer.

In any case, consulting a family lawyer helps ensure agreements accurately reflect both parties’ intentions and safeguard your interests.

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 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 while 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 in British Columbia?

Common law couples do not share the same legal rights as married spouses when a partner dies in BC.

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 rights 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 over one year, they can receive Canada Pension Plan death benefits.
• They may be eligible for worker’s 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.

However, without estate planning, such as wills, common law partners can be left with serious financial issues if their spouse dies. This underscores the importance of consulting an estate lawyer and having proper wills and beneficiary designations in place.

How Should Common Law Couples Approach Estate Planning in BC?

Common law spouses cannot inherit from a deceased partner’s estate without a will in BC. To avoid potential disputes with family members, couples should:

Create Wills Naming Each Other as Beneficiaries

Will allow common-law spouses to inherit a portion of the estate, outline specific gifts, appoint each other as estate trustee, and name guardians for any children.

Wills should be updated whenever life circumstances change, like having kids or moving. Wills made before becoming common law may be invalidated.

Designate Each Other as Insurance and Retirement Beneficiaries

Common law partners should be named as designated beneficiaries on RRSPs, life insurance, pensions, and other retirement savings so these are directly transferred outside of the estate.

Beneficiary designations trump wills in BC. Review them regularly.

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.

Create a Cohabitation Agreement for Unequal Division

Common law couples can sign a cohabitation agreement spelling out an unequal division of assets if one partner dies, instead of the default 50/50 split. This protects pre-relationship assets.

Getting appropriate legal and financial advice is prudent when creating an estate plan as common-law partners. Consulting professionals can prevent costly mistakes.

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 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.

Key Statistics on Common Law Couple Families in British Columbia

Common law relationships are increasingly prevalent among Canadian families. According to the 2016 Census (https://www12.statcan.gc.ca/census-recensement/2016/as-sa/fogs-spg/Facts-pr-eng.cfm?LANG=Eng&GK=PR&GC=59&TOPIC=4):

Living Arrangements of Adults Over 15

Couples Who Were Legally Married vs. Common Law

Young Adults Aged 20-34 Living with Parents

Same-Sex Couples

• There were 11,230 same-sex couples

Couple Census Families with and without Children

Clearly, common-law couples constitute a significant portion of families and households in modern British Columbia.

Conclusion: Safeguarding Your Rights as a Common Law Couple in BC

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.

Understanding both provincial and federal laws ensures British Columbia’s common law spouses have their rights and interests protected, just like their married counterparts.

Be sure to also check out our articles for Common Law Relationship in Canada with other provinces:

• Common Law Relationship in Saskatchewan
• Common Law Relationships in Alberta

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Frequently Asked Questions (FAQs) about Common Law Relationships in British Columbia