Are you and your Partner Spouses?
Some things you need to know about starting and ending a relationship whether you are married or “common law” …
Whether you and your partner are planning to move in together, have children, make an investment together or anything else that requires a big commitment, it’s a good idea to evaluate your legal status as a couple.
If you and your other half aren’t married but have been living in a marriage-like relationship for a certain period of time, or have children together, you may be classed as “spouses” under the Family Law Act. If you are cohabitating or have children with another person, it is important to understand what the law says about your rights and responsibilities to that other person and the children, and the effect that a separation might have on your property, debt, pension benefits and obligation to pay child or spousal support.
If you are married and are considering separating, it is also important to know your rights and responsibilities, and what the process will look like to obtain a divorce.
If you and your partner have lived together for a certain period of time, that doesn’t automatically grant you status as a “married” couple. Marriage is a legal relationship. In British Columbia, the marriage process involves completing the required paperwork: a Marriage License and a Registration of Marriage, and having a ceremony officiated by a Marriage Commissioner.
When married spouses separate, they will need to go through a legal process to obtain a Divorce. Separation is the first step of this process. The court has explained that separation is a matter of “fact” what that means is that if one spouse communicates an intention to separate to the other spouse, then the spouses will be separated.
After the spouse separate, if they want to legally end their marriage and be able to re-marry in the future, they must first obtain a Divorce. The Divorce Act is the piece of legislation that will apply to obtain a divorce. Spouses are able to divorce after being separated for one year; or sooner if cruelty or adultery can be proven.
If there are children, then the court will not grant a divorce unless the spouses can demonstrate that reasonable arrangements have been made for the care and support of the children.
While a Divorce signifies the legal end of the relationship, it does not address the many practical issues that come up for separating spouses such as division of property and debt, division of pensions and other benefits, and child and spousal support. You may need the assistance of a lawyer who can advise and negotiate those issues on your behalf.
Common law relationship: “spouses” under the Family Law Act
“Common law relationship” is not a term that you will find in the Family Law Act, which is the legislation in British Columbia that covers issues related to families, children and couples. Instead, the Family Law Act talks about “spouses” who have been living in a “marriage-like relationship.”
So, what kind of factors will establish that a couple are in a marriage-like relationship? Courts in BC have considered the following factors in determining whether or not a couple is in a marriage-like relationship:
- Whether the parties lived in the same residence and, if so, what were the sleeping arrangements in the shared residence;
- Whether the parties prepared and ate their meals together;
- Whether the parties performed domestic chores, tasks and services together;
- Whether the parties had sexual relations, maintained an attitude of fidelity, and communicated on a personal level with one another;
- Whether the parties bought each other gifts and celebrated special occasions together;
- Whether the parties shared financial arrangements and supported each other financially;
- Whether the parties conducted themselves socially and in public as a married couple.
Couples in British Columbia who have been living in a in a “marriage-like relationship” for two years or more are considered “spouses” under the Family Law Act. If the couple has a child together, then the timeline is reduced to one year of living in a “marriage-like relationship.”
If you believe that you might be considered a “spouse” under the Family Law Act, it is important to talk to a lawyer about what your rights and responsibilities are under the law. A lawyer can advise you about your options, including entering into a Cohabitation Agreement.
Rights and Obligations of Married and Un-Married Spouses
Married and un-married spouses generally have the same rights and responsibilities under the Family Law Act. Those rights and responsibilities include an interest in the “family property” and a responsibility for “family debt.”
Other responsibilities may include a requirement to pay support for the other spouse, called “spousal support.”
If either of the spouses have children, whether those are biological, adopted or step children, the Family Law Act talks about responsibilities for the care and support of those children, including how decisions will be made for and about children called “parenting responsibilities”; the amount of time the child will spend with each parent called “parenting time”; and, how each parent will contribute to the support of their child called “child support.”