Differences Between Marriage and Common Law Relationships

Rights and obligations of married versus common law couples have become more similar over recent years, particularly in the area of spousal support, or “alimony”.  If you are married, then regardless of the length of your marriage, be it eighteen months or eighteen years, you are “spouses” as defined by federal and provincial legislation, and in the event of a separation, you may be entitled to receive, or be obligated to pay, spousal support.  The amount of the support and the duration of the obligation will depend upon many factors, including the length of the marriage, whether there are children, and the financial means and needs of the parties.

If you are not married, but are living together as a couple, and the relationship breaks down, the Family Relations Act (“FRA”) of British Columbia  says you are “spouses” if you have lived together for at least two years, and if the application for spousal support is made within one year of the separation.  The definition of “spouse” in the FRA includes same sex couples.  Similar criteria are used by the Courts to determine amount and duration of spousal support in these cases.

While there appears to be little distinction between married and common law couples when it comes to determining spousal support obligations on the breakdown of the relationship, there is still a significant difference in how the Courts view “family assets” on the breakdown of the relationship.

The FRA has specific provisions dealing with the division of “family assets”.  “Family assets” are defined in the legislation, and include any assets ordinarily used for a family purpose, which obviously includes the house, cars and furniture.  Also included by specific reference are certain financial assets, including RRSP’s, pensions, shares, and certain business ventures and trusts.  The FRA specifically states that its provisions regarding the division of family assets do not apply to non-married spouses.

The legal remedy for parties on the breakdown of a common law relationship is to make a trust claim to the assets owned by the other spouse.  Non-owning spouses in common law relationships are at a distinct disadvantage when compared to their married counterparts.  If, for example, you are a married spouse and have none of the “family assets” in your name, you are still presumed to own a one-half interest in those assets, unless your spouse can rebut that presumption.  If the same person is in a common law relationship, there is no legal presumption of any interest in those assets.  That person must satisfy a Court that he or she has made contributions to the assets, and that to deprive him or her of an interest in the assets would be unjust.

For more information on this topic, please contact Pushor Mitchell.

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