In BC, common law spouses (unmarried partners) have similar property and support rights to married couples - but only if certain conditions are met. Here is what you need to know.
Many people assume that common law partners have no legal rights to property or support when they separate. In BC, this is not always true. Under the Family Law Act, unmarried partners who have lived together for at least two years have many of the same rights as married couples. Here is what you need to know about common law separation in BC.
What defines a common law relationship in BC?
Under the Family Law Act, a couple is considered to be in a common law relationship (called a "domestic partnership" in the Act) if they:
• Have lived together for at least two consecutive years, OR
• Have lived together for any period and have had a child together
The two-year period is continuous - if you separate and reunite, the clock may restart. However, short separations (weeks or months) during an otherwise continuous relationship may not break the chain.
Property rights for common law couples
Once a common law relationship meets the two-year threshold (or a child is born), the Family Law Act treats property division similar to marriage:
• Family property (acquired during the relationship) is presumed to be divided equally
• Excluded property (owned before the relationship or inherited) typically remains with the original owner
• The family home is treated similarly to a married couple's home - even if only one spouse's name is on the title
• Pensions and registered retirement accounts acquired during the relationship may be divided
Important: If you owned property before the relationship began, it may remain your separate property unless it became a family asset (e.g., you moved the other spouse into your family home or you used it as a matrimonial residence).
Spousal support for common law couples
After two years of living together (or if a child was born), a common law partner may be entitled to spousal support under the same guidelines that apply to married couples:
• The paying spouse's income and ability to pay
• The length of the relationship
• Whether one spouse sacrificed education, career, or earning potential to support the relationship
• The standard of living during the relationship
Child support
Child support obligations are the same for common law and married parents. The paying parent must pay based on the federal Child Support Guidelines, regardless of whether the parents were married.
Common law relationships under two years
If you end a common law relationship before two years and there are no children:
• You generally have no entitlement to property division or spousal support
• However, you may claim unjust enrichment if one partner benefited unjustly from the other's contributions (e.g., you paid for renovations on a home titled in the other person's name)
• Child support (if there are children) still applies
Under the unjust enrichment doctrine, BC courts have sometimes awarded compensation even in short-term relationships where one partner made significant financial or non-financial contributions.
When common law status is disputed
Problems often arise when one partner denies the relationship ever existed or disputes how long it lasted. Factors courts look at to confirm a common law relationship:
• Joint leases or mortgages
• Joint bank accounts or credit cards
• Shared utility bills or household expenses
• Testimony from family and friends
• Income tax returns or government documents showing the relationship
• Joint ownership of property or vehicles
• Shared children
Estate planning for common law couples
One critical difference from married couples: if a common law partner dies without a will, a partner of two years or more can inherit under WESA's intestacy rules - not to their common law spouse. This is why common law couples should:
• Prepare a will naming their partner as beneficiary
• Designate their partner as beneficiary on life insurance, RRSPs, and TFSAs
• Set up a power of attorney to give their partner decision-making authority if they become incapacitated
At Sea to Sky Law™
We help common law couples understand their property and support rights - whether they are separating or planning their estates. If you are in a common law relationship and uncertain about your rights, contact us for a free intake call.
This article is for general information only and does not constitute legal advice.