When it comes to common law relationships in Canada, the rules are anything but common. Every jurisdiction treats them differently with their own requirements and legal rights.
In British Columbia alone, the rules are slightly different depending on the area of law in question and the nature of the relationship.
To make matters more confusing, the province made amendments to the Family Law Act in 2013 to explicitly account for common law relationships, meaning that the rules you may have heard through hearsay might be out of date, inaccurate, and profoundly misleading. (Maybe you’ve heard the rumour that you’re considered common law after six months? Definitely not the case.)
In this blog, we’ll dig into the nitty gritty of common law relationships in British Columbia, covering topics like:
- What does common law mean in BC?
- What is a common law spouse entitled to in BC?
- What happens when a common law spouse dies (with or without a will)?
What does common law mean in BC?
In BC, there are two different qualifiers for being considered a spouse under the Family Law Act.
- Couples who are (or were) married to each other.
- Couples who have lived together in a ‘marriage-like relationship’ for more than two years (or who have a child together).
This means that in BC, unmarried romantic partners who have lived together in a marriage-like relationship for more than two years are treated the same way as married spouses for the purposes of dividing property or debt.
When Does Common Law Start?
Under BC law, the start of the spousal relationship is the day that two people begin living together in a marriage-like fashion, or the day that they get married—whichever comes first. This starting point determines when rights and responsibilities kick in, particularly in respect to property division.
Why did the rules change for common law relationships?
Before amendments were made to the Family Law Act in 2013, unmarried couples in BC weren’t ever considered spouses for division of property or debt. Now, they’re as good as legally married in some cases.
Why did it change? A mix of popular demand and necessity.
The number of common law families in BC is growing three times faster than the number of married couple families. And while other areas of the law had provisions for common law relationships, the Family Law Act was woefully inadequate for the needs of BC families.
What does the province of British Columbia consider a ‘marriage-like relationship?’
While many of us are more familiar with the term ‘common law’, it is not a legal term in BC. The term used in BC family law is ‘marriage-like relationship.’
Considering that every marriage is built a little bit differently, many couples might hear that term and wonder what that actually means. It is admittedly a bit ambiguous.
There are a few key factors that the court would consider when assessing whether a relationship fits the marriage-like bill. They typically pertain to whether or not you share a roof or a bed, if you have a sexual and personal relationship, how you split the domestic work at home, and whether your finances and your social lives intermingle. Basically, do you act like you’re married?
While there are guidelines around these areas, they are not strict checklists. There is plenty of gray area and if you’re going to court to argue that you were or weren’t in a marriage-like relationship, you’re going to want to speak to a lawyer and get some legal advice.
Can I just sign a 'no common law' agreement to avoid common law status?
The short and frustrating answer is maybe.
Many people assume that if you enter into an agreement and sign a piece of paper with your partner confirming that you’re definitely not in a marriage-like relationship, then you’re good to go. This is not always the case in court.
Previous rulings in court have decided that the subjective intent of a couple signing one of these agreements does not determine whether or not they are objectively in a common law marriage-like relationship.
In these situations, the court really does feel that actions speak louder than words.
You have to prove that your relationship wasn’t marriage-like in actuality, not that you didn’t want it to be. It’s a lot easier to prove this if the relationship was short term, you had no children, and there was no mixing of your finances.
What is a common law spouse entitled to in BC?
Since 2013, BC’s Family Law Act treats common law couples the same as married couples for the purposes of property and debt division if they split up.
Couples who have been living together for two years share the same legal rights as married couples in BC, including a 50/50 split of debts and assets—excluding pre-relationship property, inheritances and gifts.
A partner in a common law relationship can also be entitled to spousal support.
Learn how to create a legal will in BC →
How are common law assets divided in BC?
In the case of a common law separation, common law spouses under the Family Law Act have a right to share equally in any property acquired during a relationship. This is similar to a married couple. Property acquired beforehand might be exempt.
For couples who have been together for less than two years but have a child together, parenting provisions of the Family Law Act apply, but there isn’t typically a division of debt or property.
Is a common law spouse entitled to an inheritance in BC?
When a common law partner dies, BC law similarly treats them as they would a married spouse, meaning that they are entitled to an inheritance. The surviving spouse is entitled to a share of the estate, whether or not there’s a legal will in the picture.
People in a common law relationship are also entitled to certain other inheritance rights.
For example, if one spouse dies at work, the surviving spouse may be eligible for worker's compensation death benefits.
At the federal level for Canada Pension Plan (CPP) purposes, you’re treated as a married couple if you lived together for at least a year before your spouse dies, meaning you’d potentially be eligible for a lump sum payment and a survivor’s pension.
An important thing to remember is that if your partner was supporting (or was meant to be supporting) an ex-spouse and their children, they may also have claim to these benefits.
Can a common law spouse claim spousal support?
You must apply for spousal support within two years of the date you separated, and are eligible to apply if:
- you were married,
- you lived together in a common-law relationship for at least two years, or
- you lived in a common-law relationship for less than two years and have a child with your ex-spouse
How do you prove common-law in BC?
You can prove you were in a common-law relationship by using any of the following as evidence:
- shared ownership of residential property
- joint leases or rental agreements
- bills for shared utility accounts, such as gas, electricity, telephone, joint utility accounts
- important documents for both of you showing the same address, such as driver’s licenses or insurance policies
- identification documents
What happens when a common law spouse dies in BC?
In BC, the death of a common law spouse is treated the same way as it would be if they were married. With or without a legal will, spouses are typically considered amongst the next of kin for division of debt and property.
Can common law partners contest wills in BC?
Yes. If your spouse dies and leaves you with nothing, or too little, you can make a claim against the estate.
An important thing to note is anyone who appears to have a financial interest in the estate can contest a will. This includes not just spouses, children, and those mentioned in the will, but also extended family members and people mentioned in any previous will.
Find out how to keep things simple for your loved ones with our quick will checklist. Get your free checklist →
What happens when a common law spouse dies without a legal will in BC?
When someone dies without a legal will in British Columbia, there are a series of laws called ‘intestacy laws’ that determine what happens to their estate. In BC, common law partners are often treated in the same way as married spouses, so they are counted amongst the next of kin.
If a common law spouse dies without a legal will and no descendants, then the estate typically goes to their partner.
It gets a little bit more complicated if the deceased had kids or grandchildren.
For example, if the deceased has descendants, and they are all also your descendants, then you get the first $300,000 of the estate, then half of what’s left over after that. The other half is divided equally between the children.
If they had descendants with someone else, then you would receive the first $150,000 of the estate instead of $300,000. You would still get half of what was left over after the initial $150,000 and the other half would be divided equally among all the children of the deceased.
You’ll notice that this only accounts for the value of the estate. The emotionally priceless possessions that have been mentally earmarked for particular nieces and nephews will not be accounted for, and likely won’t go to the intended person without a legal will outlining those wishes.
Protect your common law relationship. Start writing your will for free today →
What happens to our house if my common law partner dies?
There are three different designations on title deeds:
- Joint tenancy
- Tenants in common
- Owned on your own
In both cases, you and your spouse own your house together and are both on the deed, but there are big differences in what happens to the house when one of you passes away.
Joint tenancy means that after one of the spouses dies, the other spouse becomes the sole owner of the house. The surviving spouse ends up as the sole owner of the house.
If the house is owned as tenants in common, that means that after one of the spouses dies, their share of the house does not automatically go to the other spouse who co-owns the house; it becomes the property of whoever is designated as the beneficiary in the will or becomes part of the general estate of the dead spouse. In this case, the surviving spouse may end up co-owning a house with their partner’s parents or other family members.
If the deed to the house doesn’t explicitly say joint tenancy, or name you as a joint tenant, it is typically automatically considered tenants in common.
If you own a property solely under your name and your common law partner isn’t on the title, when you pass away the property will flow through your estate like any other assets you own. It’s either covered by your will or it is distributed based on intestacy laws in BC.
Make sure your final wishes are fulfilled
When it comes to legal considerations for couples living in a common law relationship, British Columbia has more provisions than many other provinces. The BC Family Law Act will likely treat your relationship like a marriage, giving your relationship the same rights even if you didn’t have the cake and the fancy white dress.
But that doesn’t mean that dealing with an estate will be easy.
Without a legal will, your assets would be lumped together and any distribution preferences you had may not be accounted for. While your special someone may receive the same provisions as a married spouse would, the division of your property may not match up with what you’d hoped for.
When your loved ones are grieving your loss, the last thing they should be worrying about is who gets your prized signed Canucks jersey.
Save your partner the unnecessary headache: Start writing your will for free today to make sure your final wishes are honoured.
Willful is not a law firm and cannot provide legal advice. All information in our Learn Centre is general and public information that can also be researched through your provincial attorney general website.
