Are We Common Law?

By Michelle Guy, Vancouver Family Law Lawyer at Paine Edmonds LLP

Family law in British Columbia is currently governed primarily by two pieces of legislation; the Divorce Act (Canada), which is federal legislation, and the Family Relations Act, which is provincial legislation.

Unmarried couples do not fall under the jurisdiction of the Divorce Act, and so must seek their relief under the Family Relations Act. The Family Relations Act defines spouses to include a couple who have lived in a “marriage-like relationship for a period of at least 2 years”.

Under the Family Relations Act, a common law couple who has resided together for two years can seek relief for child and spousal support, but has no recourse with respect to property. Currently, if you are leaving a common law relationship and the property is held under the name of your spouse, you must make your application for its division under the law of trust. This is complicated law that requires you to prove your entitlement in proportion to your contribution, and you must demonstrate that your contribution was to the benefit of the other party and subsequently your detriment, with no juristic reason.

If a couple has lived together for less than two years, they can only make application for support of a child under the Family Relations Act. A party does not have to have lived with the other parent to seek or pay support for a child, so long as they are the biological parent of that child. Where a person has stood in the place of a parent for a period of at least one year, that party may also be liable for support of that child.

The Government of British Columbia is changing the rules with respect to property in the new Family Law Act. The new Family Law Act also defines common law relationships as a couple that has lived together for two years, but brings them under the same property regime as married couples. This act changes the old regime of a presumption of an equal division of property for married couples, and applies that presumption only to property accrued during the course of the relationship.

The definition of common law may be different under other legislation or regulations. For example, the Canada Revenue Agency defines a common law couple as two people who reside together in a conjugal relationship for 12 continuous months, or reside together for any period of time and share a child. The Canada Pension Plan defines common law partners as two people who have resided together in a conjugal relationship for at least one year, as does the British Columbia Public Service Agency Employee Benefits program.