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Keri_Coles_Photography_BHM_121On March 15, 2016, The BC Court of Appeal found in favour of a Brown Henderson Melbye client and made a significant ruling on property rights for common law spouses. The court found that common law spouses who separated before the new family law legislation, The Family Law Act, came into force would have two years from the date that they separated to make a claim for division of property.

The Family Law Act came into force on March 18, 2013 and this client had separated from their common law spouse prior to this date. The previous family law legislation, The Family Relations Act, did not address the division of property for common law couples. These couples were left to make arguments on a case by case basis as to how the property should be divided, which could lead to greater uncertainty and unfair division.

Kay Melbye, with the assistance of Samantha Rapoport, successfully argued that The Family Law Act should apply to a situation where a common law couple separated prior to the coming into force of the Act on the basis that it would be absurd that the Act applied to formerly married spouses, but not common law spouses. They further supported this argument by directing the court’s attention to the fact that the new Act was meant to be remedial and fix, among other things, the previous Act’s oversight in treating common law couples differently than married couples. It took more than two years of legal proceedings to achieve this important success for a Brown Henderson Melbye client and to help refine the law for common law spouses in British Columbia.