What is a Common Law Relationship and How Do I Prove I’m in One?

What is a Common Law Relationship and How Do I Prove I’m in One?

Property division rules apply not only to married couples who decide to separate, but also to unmarried couples who have lived together in a “marriage-like” relationship for at least 2 years. This is commonly referred to as a “common law” relationship.

Therefore, if you are considering a separation from your long term, unmarried partner, it is important to keep in mind that you and your partner may be entitled to share in the property acquired during the course of your relationship. This may come up in conversation between you and your partner or former partner, in mediation or informal dispute resolution, or in a more formal courtroom setting. In any regard, it’s important to understand what is meant by a “common law” relationship and how you can prove that you are or are not in one.

Definition of a Spouse

Unmarried couples are entirely governed by provincial jurisdiction, meaning the British Columbia Family Law Act will apply to any disputes arising as to the division of property after separation. For the purposes of property and pension division, the Family Law Act defines a “spouse” as someone who is either married to another person or has lived with another person in a marriage-like relationship for a continuous period of at least 2 years.

Different provinces have different rules as to when a relationship becomes a “common law” one. British Columbia is often referred to as an “opt-out” regime, meaning that the law on when your partner becomes a spouse, for the purposes of property division, is rather ascriptive. Many people are not aware that the obligations that arise between them and their partner after 2 years of living together in a marriage-like relationship are the same as those which would arise had they gotten married. Those who are aware may choose to enter an agreement with their partner to ensure such obligations do not arise. Absent an enforceable agreement, however, your partner becomes your spouse once you have lived together in a marriage-like relationship continuously for 2 years.

Marriage-Like Relationship

This begs the question of what is meant by the term “marriage like”, and how do you and your partner, or a judge, decide whether your relationship meets this definition? The Family Law Act itself does not provide an answer to this question. Rather, one must look to case law.

The term “marriage-like” does not have a single, clear-cut definition or checklist, especially as the concept of marriage itself has changed alongside society. It is important to note that a couple’s personal classification of the relationship is not the test, but rather the intention and functionality of the relationship in practice (Weber v. Leclerc, 2015 BCCA 492, “Weber”).  Singular factors such as financial dependence or even living together in one home are not conclusive of whether a relationship is in fact “marriage like” (Weber, supra; Roach v. Dutra, 2010 BCCA 264). Rather, the British Columbia Supreme Court in a case called Kneller v. Greenwood, 2015 BCSC 1410, came up with several categories of questions that can help a court, or other adjudicator, determine whether or not the specific nuances and context of a relationship make it “marriage like”. These categories are:

·         Shelter;

·         Sexual and personal behaviour;

·         Services;

·         Social;

·         Societal; and

·         Support (economic).

The various indica of a marriage-like relationship contained within these categories, as detailed below, may be present in a relationship to varying degrees, and it is not a “checklist” that must be fulfilled in its entirety. Rather, the court uses these categories and indica as a guidepost to best determine whether the relationship, in its true intention and function, is best described as “marriage like”.

Shelter

As mentioned above, a couple’s living situation alone is not determinative of whether they are in a marriage-like relationship. However, a court will consider, among other things, whether the parties lived under the same roof, what their sleeping arrangements were, and whether anyone else occupied or shared the available accommodation.

Sexual and Personal Behaviour

In addition to considering their accommodation arrangements, a court will consider the sexual and personal behaviour of the partners, asking questions such as:

• Did the parties have sexual relations? If not, why not?

• Did they maintain an attitude of fidelity to each other?

• What were their feelings towards each other?

• Did they communicate on a personal level?

• Did they eat their meals together?

• What, if anything, did they do to assist each other with problems or during illness?

• Did they buy gifts for each other on special occasions?

Services

To further examine the intention and function of the relationship, the court will consider the conduct and habit of the parties in relation to preparing meals, washing clothes, shopping for necessities, maintaining the household, and other domestic services.

Social

The court will also look to social indica, such as behaviour of the couple around family and community. This includes:

• Did the couple participate together or separately in neighborhood and community activities?

• What was the relationship and conduct of each of the parties toward members of their respective families and how did such families behave towards the parties?

Societal

Similar to the “social” indica above, the court will consider the question in reverse. Rather than looking at the conduct of the couple around their social community, here the court asks what was the attitude and conduct of the community toward each of them and as a couple.

Support (Economic)

Finally, the court looks to the financial arrangements between the parties regarding the provision of or contribution toward necessities of life, such as food, clothing, shelter, and recreation. They will also consider the arrangements concerning the acquisition and ownership of property, and whether there was any special financial arrangement between them which both agreed would be determinant of their overall relationship.

While there is no definitive checklist for when a relationship becomes one that is marriage like, the above indica are guidance which may assist you in determining whether you and your partner are in a marriage like relationship, and therefore whether the property division rules that apply to married couples are likely to apply for you, too.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.