Breakdowns of long-term marriages or common-law relationships, also known as “marriage-like” relationships, is on the rise.
Spouses who have been married, or in a marriage-like relationship, for 20, 30, 40 years or more years, have built a financial and social life together. When separating, these spouses will have much to consider in order to structure a settlement. Six issues that spouses separating after long term marriages or marriage-like relationships include the following:
1. Spousal Support issues:
a. The factors that determine what, if any, spousal support is payable following the breakdown of a long-term marriage or marriage-like relationship are unique to each case. However, as a general statement, in a long-term marriage or marriage-like relationship where one spouse earns substantially more than the other spouse, it is likely that spousal support will be payable in order to ensure that each spouse can enjoy a similar lifestyle after the separation.
b. In many long-term marriages or marriage-like relationships, spouses earn similar incomes. In these cases spousal support may not be payable. Spouses often face lifestyle adjustments following their separation. These adjustments may be necessitated because each spouse must now support his or her own household on only one income, whereas during the marriage or marriage-like relationship, the spouses supported a single household on two incomes. Spouses may wish to consider meeting with a financial professional who can make recommendations to ease the financial transition away from the marriage or marriage-like relationship.
2. Child Support Issues:
a. Spouses separating after long-term marriages or marriage-like relationships often have children who are independent adults. Child support would not be payable for an independent adult.
b. There are circumstances following the breakdown of a long-term marriage or marriage-like relationship where the spouses have one or more children who are over the age of majority, but the child or children are unable to support themselves for a variety of reasons These reasons could include the child’s attendance at a post-secondary institution, or because the child is disabled. In these cases, child support or a contribution to other expenses for the child may be required.
3. Retirement issues:
a. Spouses separating after long-term marriages or marriage-like relationships may also be at or near retirement age. A spouse’s retirement around the time of separation, or following the separation, requires consideration of a variety of issues, including:
i. Division of employment pensions;
ii. Division of Canada Pension Plan;
iii. Division of retirement accounts; and
iv. A spouse’s reduced income to pay support in retirement.
4. Property and debt division issues:
a. The Family Law Act, which is the piece of British Columbia legislation that applies to spouses who are separating after the breakdown of a marriage or marriage-like relationship, sets out that there are two “kinds” of property: family property and excluded property
i. On separation, the starting position is that each spouse is entitled to an equal share of family property, and responsible for one-half of family debt.
ii. Excluded property, which includes property acquired by one spouse before the relationship or through a gift or inheritance to one spouse, is “excluded” and will remain that spouse’s property after the separation.
b. The Family Law Act provides exceptions where “excluded property” can be divided based on “the length of the relationship” and the other spouse’s “direct contribution to the acquisition, preservation, and maintenance” of the excluded property. As a general statement, in long-term marriages or marriage-like relationships, a spouse may have a better claim to the other spouse’s excluded property than in short-term marriages or marriage-like relationships.
5. Inheritance Issues:
a. Many spouses who are separating after long-term marriages have or will be receiving inheritances.
b. As a starting point, inheritances are the “excluded property” of the spouse who receives the inheritance.
c. The receipt of an inheritance may affect the amount of spousal support that is payable, or how family property is divided. These circumstances are very fact-specific, and consultation with a lawyer is advised.
6. Mental health and well-being: The end of a long-term marriage or marriage-like relationship is often an emotionally difficult time for one or both of the separating spouses. Although there are many practical issues that will need to be addressed in order to structure a settlement, spouses should be mindful not to neglect their emotional and physical health. Self-care, the support of friends and family members, and consultation with mental health professionals can all be important strategies for assisting a spouse who going through a separation following the breakdown of a long-term marriage or marriage like relationships.
The above list of six issues to consider on the breakdown of a long-term marriage or marriage-like relationship, is general information only. As family lawyers, we must stress that each case is unique. Legal advice will depend on the particular circumstance of your situation. If you are considering separation after a long-term marriage or marriage-like relationship, we recommend that you consult an experienced family lawyer.
